
Glass 



E3J-a 



Book. N 5 T"4^ 



BEFLY 

ro 

MR. OUFONCEAU. 

MR. DUPONXEAU has lately published an an- 
swer to my iVIemoir on the Batiure. In vain I 
sought in that production, \\ hat its tide so positively 
promises, a refutation. I have found in it long disser- 
tations; to prove proposition^;, which, far from having 
contested, 1 had clearly established ; I have found in it 
sophisms, which I now undertake to refute ; assertions 
the fallacy of which I will demonstrate ; and I have 
perceived throughout a tincture of disir.genuity, which 
every juri.-xonsult who respects himself, o.^ght to blush 
to gi\e to his writings. These prelimir.ary observa- 
tions will doubtless appear rather unceremonious, and I 
am aware that they are ndt calculated to conciliate the 
good will o£ the gerjerality of such persons as may chose 
to accompany me through this discussion ; but they who 
have read Mr. DupoDceau will please to recollect that I 
am' represented 'by him as a man whose candour borders 
on imprudence, and ihen they \\ ill surely excuse the 
emotions of indignation vhich I have felt on the perusal 
of a writing, in which the author makes it his sport to 
advance, not only the most pieposterous parad xes, bat 
assertions utterly repiig.sant to truth. Mr. Dup .nceaa 
is pleased to acknowledge, th.it from the j.erusal of my 
voluminous work, he has concluded that I aj)pear *' to 
be possessed of a stock of knowledge on the subject of 
general jurisprudence which falls to the lotof b it few of 
those who have not made it their professional study ; 
but that those acquirements in matters of science, which 
are suiTicient for the purposes of elegant accomplishment 

A 



¥;\\\ not do for practical use, and that the application of 
every branch of human knowledge, is safest in the hands 
of those who profess it exclusively, and have made it 
the study of their lives." Were Mr. Daponceau argu- 
ing on the same side with me in this discussion, he might 
with propriety express himself in this manner j for it 
were only to say to me in other words : tho' you have 
not produced a performr.nce absolutely destitute of 
merit, much more justice might have been done to your 
cause ; and this I readily believe. But if his object 
was merely to throw out these reflections as a prelude 
tu his intended refutation, I am sorry to observe to him 
that, besides iheir beirg idle, inasmuch as they do not 
prepare the mind for auy proof contrary to what I have 
advanced, they involve a kind of paralogism, as they no 
where could possibl) have found a proper place, except 
in the opening of an argument whose object were to 
make the cause I defend, wear a better aspect than it did 
from my reasoning. 

It should seem that one of the greatest advantages 
Mr. Duponceau has derived from the constant study 
of jurisprudence, is to set himself free from all restraints 
of order or fidelity in his refutation. I might howe- 
ver observe to him, that as he had acknowledged the 
order of my discussion to be excellent, he was indispen- 
sibly bound to follow me in that order ; that the plan of 
refutation which he has adopted, betrays either impo- 
tence or disingenuity ; that where the order of discus- 
sion is broken, we invariably find that the principles are 
insulated from their consequences ; that, in a word, 
there can be no refutation of a work of which all the 
parts are connected, when he who attempts to refute it 
docs not strictly confine himself to the order in which 
the several parts have been conceived and arranged. 
But I am willing to wave these objections, and I con- 
sent to consider the distribution made by Mr. Dupon- 



(3). . 

ceau ; I will not say as presenting the substance of my 
work, for the developement of the first proposition is 
exceptionable, and the statement of the second is entire- 
ly of his own invention ; but as capable of preseniingaa 
order to which I will strictly adhere in the discussion. 

Before I enter on the main subject, I think it may 
not be amiss ti give some idea on the sincerity of my 
antag )nist- Mr, D lojnceau pretends that my charge 
was groundless, when I taxed Mr. Derbigny wi h hav- 
ing mutilated, in a publication in the Monitor, the only 
quotation he there made from my work ; and he under- 
takes to prove that Mr. Derbigny had read and under- 
stood me correctly. 

In order to refute the pretended proofs of Mr. Du-^ 
ponceau, I need only lay before the impartial reader 
the very expressions of Mr. Derbigny, and the passage 
in 37ch page of my Mem )ire to which he refers '•'' It is 
unfortunate,'* savs Mr. Derbigiy, in speaking of the 
question of the law of nadoas, '•'■ that after having estab- 
lished it on a very good basis, he has himself endeavor- 
ed to destroy his own work, by admittir.g ihat Messrs. 
Gravier 5»nd those from wht)m they derive iheir title, 
have constantly enjoyed the right of taking in the suc- 
cessive portions ot batiure (page 37) which die consoli- 
dation of the soil permitted them to incorporate with 
their estate." 

Here follows, word for word, the passage of page 37, 
to vvh'ch Mr. Deibigny alludes : 

*' What in the next place proves in a victorious and in- 
" contestible manner, that B. Gravier, in convertmg his 
'' hereditament into a suburb, had alienated not only the 
'' principal, but even the accessory, that is, the poriion 
*' of alluvion then existing, is that, according to the 
*' point of departure established by Mr. Devezm in his 
*' survey, and which, agreeably to the opinion of Mr. 
*' Lafon and the sentiment of Mr. Du ponceau, was 
'^ not a fixed and immutable point, but only a poiatr 



• • (4) 

« from wh'ch the land then appeared tillable, the Je- 
*' &uit*b plantation, of which that ut iMr. Gravier was 
*' but a ;)0-iion, c.^niain^d ai tha: tunc bat fifiy arpents 
*' ill depth, wheiea. it re.uks fro.n the smvey Idtely 
*' made by Mr. Maisuy, ihac the Gravier plaiKdtion, 
*' beginnir.g from .he angle of the suburb on the city 
'' side, is found to have a deptti of fif.y-;,ix arpents. 
*^ Of th s d.IF-^e.ice, the sole cause tc/ be assigned is 
" the successive reinion of (/.'^.- ento.rti ns -.f alluvion^ 
" of which B. Gravier, a \\ .h > .e fro.n vvh Jin hj holds 
"" 7niy hav iivai't^d IfitmsctvMj^^ 

I now ask aiy iiia.i wh ) d >e3 not mike open profes- 
sion of disir.genuity, whether it can be pretended that I 
have admitted that fvLe^srs. G-avier and those froni 
^vhom they deri\e thei*- title, h'lve C' nstantly enjo\ ed 
the rightrf taki g in the p(;jtit.n;5 of batture which \he 
consolidation of die soil ];ermitted them to iixorporate 
with hj^ir estate I 

That a cursory and superficial reading of this passage 
may not have sufficed at <nice to give to Mr. Derbigriy 
a corect idea of whit 1 had advanced, insomuch that 
he has attributed to both the Graviers rights which had 
belonged to Bertrand Gravier, until the period when he 
converted his estate into a suburb ; this is the less 
strange, as Mr. Derbigny's attention was at the time 
much engaged in a woik which he was writing on the 
same subject ; and indeed the frankness with which he 
has since acknowledged his error, has fullv convinced 
me that it was involuntary. But that Mr. Duponceau, 
in a refutation which he has written, havii^g before his 
eyes the two objects of comparison, should pretend 
that hi^ bro'dier lawyer fhid ivell mil and understood me^ 
this would bespeak an unpaidonabie excess ol levity, 
if we did not discover, in almost every line of this work, 
multiplied proofs of his want of sincerity. 

Mr. Duponceau reduces to four propositions, the sub- 
Stance of my Memoire. The dev elopement which he 



(5 ) 

irivcs of the fir<it, rests on principles diametrically op- 
pobiie to th'>be on which I rt-ued. If he is to be be- 
lieved, I have asserted that the Batture is part of the 
bed of ihe Mississi-pi, and as such, is public property. 

I have said, and I have proved : l^t. that the Batture 
was not an aUuvion, l)ui that it ft^rmed the bai.k, and 
even a i)art of the bed of the ri'.er; 2dly, that the 
Batture, bv the establishment <if the suburb, of which 
it formed the barb >r, had ih-ui become public property; 
but that, until that period, the sod of n had belonged 
to the « ordering land- holders, and thii absjluie use of 
it, to the peo.le ; which is very fa r from having assert- 
ed 'hat it was originaii\', in its nature, a public property. 

The second pr(^, ositi m is entirely of Mr. j^up^mceaa's 
own invention. He imputed to me an opiai<;n abso- 
lutely contrary to the doctrine wh.ch i have pnfessed, 
and asserts positively that I have maintained that, by 
the law of naiions as wexl as by the Roman, Span^h 
and French laws, bai^ks of rivers were public property. 
The only refutation that such an assertion merits, is to 
refer him to page 10 *>f his woik, where he formally 
SicknowltdgGS ihdi I hav(' g-'v en up in t tie mjst explicit 
vtai.ner the pnnciples oh luhich Messrs. luoreau and 
JD^.rbigny hac/ founded their legal opinion. Now, v. hat 
were those principles i The verv same that Mr. Dapon- 
ceau has since so gratuitously imputed to me : ihac the 
banks of rivers are public property ; and c^msequently 
the very principles which I declined to defend, because 
they might lie open to some objections. I therefore 
determined to aig ic r,nly a fortiori^ rei\ ing wholly on 
the civil law, to avoid giving any room for a reply ; and 
I have effectuallv attained the end 1 had in view, inas- 
much as of th >se four proposition, the two former are 
foreign to me, the one in the developement, and the 
other in the statement ; and the two latter, though faith- 
fully reported, have not been made by Mr. Duponceau 
the subject of any refutation. I might say, as to the 



(6 



two former propositions, that he ha<^ brought them into 
view for no other purpose than to draw from them the 
subject of a long dissertation on points which I am far 
from having contested, in order to give to his writing 
the air of a refutation, nearly as Don Quixote, for want 
of real adversaries, created imaginary ones in the wind- 
mills, to procure to himself the honor of combating 
them. As however, some of the authorities cited by 
pie, have been distorted by ]Vh% Duponceau, it will be 
no additional trouble for me, in restoring them to their 
true sense, to follow hun through all the different points 
of his discussion. 

" The scene is shifted, says Mr. Livingston's counsel, 
the batiure is no longer an alluvion, it is simply a bat- 
ture ; a kind of non dcscr'ipt thing mi gene^-'is^ a thing 
which has never been known or heard of in any other 
country, and consequently a fit subject for non de script 
principles, and unheard of rules of law. Thus Oliver 
Cromwell, say the historians, chose the title of prott'C- 
tor, in preference to that of king; because the powers 
of the one was defined, but those of the other were not." 

After so dashing a decision, and such learned rea- 
soning, it is really unpleasant for Mr. Duponceau that 
the word Batture is so well known that one needs only 
to look for It in Boyer's Dictionary, to find its true 
signification in English. That auihor englishes t?asse 
or batture by fat or shoal^ and he takes particular care 
not to confound it with alluvion^ of which he gives a 
distinct definition in his double dictionary. I know that 
Mr. Duponceau is as little inclined to parcion me for 
not having confounded those two terms, as Mr. Liv- 
ingston is disposed to forgive the President iov hav- 
ing employed in his message the word shoal, instead of 
the word alluvion;* but these gentlemen have here.no 



•» Mr. Livingstons address to the people of the United Statesj page 2^. 



(7) 

cause of reproach against either the President or me, 
this dis^inctiiin, unfortunately for them, appears to have 
been established about a century ago, by a writer whose 
authority in such case, is conclusive with regard to both 
the languages. 

From the identity of the idea attached to the words 
Plage and Butture^ as well as from the nature of things, 
I was warranted to say that a Batture was to a river 
that beats against its strand, what a Plage is to the sea 
that beats its shore ; for the sole difference between 
these two words, Plage and Batture^ is merely that 
of the two languages to which each of them belongs. 
The one is Greek, the other is French ; but they both 
perfectly represent the same idea. Plage is evidently 
derived from Plegc of which ti^e Dorians who inhabit- 
ted Grecia Magna, or the kingdom of Naples, made 
Plaga^ which the Latins adopted, as they ^\&fama^ in- 
stead of pheme^ &c. Pltge signifies the action of one 
body striking against another ; and the Greeks applied 
it, by metonymy, to the shore of the sea, «/>o ioit och 
thou para ton chumaton peplegirienou^ that is, from the 
shore's being beaten by the waves. 

The Italians, the Spaniards and the French, have con- 
tinued to give to this word the same acceptation. Thus 
Plage and Batture are substantially synonymous, the 
one representing the place v/herc the billows of the sea 
beat, the other the place washed by the waves of a ri- 
ver. I am well aware that such investigations would 
more properly find place in an etymological dictionary, 
than in the discussion of a point of lavv ; but as the main 
argument of my adversaries is in reality no more than 
a sophism built on the pretended synonymous import of 
the terms alluvion and batture, which are words of es- 
sentially different and distinct acceptation ; in order to 
refute them, I could not avoid referring them to the 
most certain elements of language. Had it been as 
easy for the parliament of England, to circumscribe the 



(8 ) 



authority of the protector, by known precedents of a. 
similar dignity in history, a^ it is to establish a precise 
and posiiive distinciion between the natu'e of an allu- 
vion and that of a.batture, there is not the least doub^ 
but that, in order to attain his purj)0,e,. Cromwell would 
have given to his government a very different denomi- 
nation. 

Mr. Duporceau pretends that the definitions to which 
I have had recourse, have noi p»Oved that ihc batture 
was on this bide the bank, and he ob^et ves that in dis- 
cussing the points on wb.ch I rely, he will onfine his 
references lo the verv authorities I have adduced* 

In order to di cuss \n\ a'guments, and to overthrow 
them, it would have been nece sary first to prove, that 
the batture was an alluvion; and as that accession of 
propert\ requires three cc.ndi ions nhich I have perfect^ 
ly ebtablihhed fjom auih(*rine.s which Mr. Dapoiiceau 
takes special ca>e to pass over in sil-nce, to wit, 
the imneiceptib-ly of the increase, the sicciiy and con- 
solidaliO-i <'f that accessory with ihe pjiricipai, and 
finailv such a dereliction of the river, that what consti- 
tuted its bank, be out of [iublic u.e, that gentleman 
-ought to have begun by releasing the allusion from such 
rigid condii.ons. But it is evident that he found that 
impossible, inasmuch as he must necessarily have con-'' 
founded it widi the bank, which musi be, and which in- 
deed by its nature is, a different thing ftOm alluvion, thci 
©r.e being the j)ropert} of the borderer, but subject to 
the undisiuibed use of it which he must aliow to the 
public, while the odier belongs, without any reserva^ 
tion, to the borderer, both as to ownership, and to ex- 
clusive use. It is then fal e that Mr. Duponceau has 
ccmbated the arguments which I iu-g' d agamst him, he 
has not even atempted to attack them. 

Let us now exainine whether it be true that I have 
not proved that the butture is on this bide the bank of 
the nver. 



(9) 

Tt is an fnvanable rule in jurisprudence, that to forna 
a correct judgment of the meaning of a law. its variou* 
relations must be compared one with another. " Ad 
perspiciendiim sensum l^gis, oportet omnes h \jus arti- 
culos in vicem comparare. '* Mr. Duponceau, after 
having announced his intention to refute me without hav» 
ing recourse to any authorities but those cited by me, 
begins bv keeping out of view the definition of the river 
given by Paulus : Ripa est quod plenissimum flumen con- 
tinet " The bank is that which restrains the river when 
the waters are highest. *' This intentional omission of 
Mr. Du Ponceau's is the more remarkable, as the au- 
thority of Paulus is confirmed by Domat, in his legum 
delectus^ and especially by Pothier, in his classification of 
the Pandects, a work which, according to the opinioo 
of that celebrated jurisconsult, comprises the entire sys- 
tem of the wisdom of the Roman law. Universum ci» 
vilis Romanorum sapiencix systema in hia pandectif 
continetur. Path. Proieg, 

If those two writers do not report the definition of 
TJlpian, it is not, as we shall see, because it essentially 
differs from that of Paulus, but because it is far from 
having the same perspicuity and precision. 

Ripa autem^ ait Ulpianus^ tfarecte d-Jinietur id quod 
jlumen continet^ naturalem rigor em cur. its sui ttnens, 
Cceterum .li quando vel imbribus^ vel nivibus^ vel mari^ 
velqud alia rattone^ ad iempus excrevit, rtpas non mutat, 
Nemo dinique dixit Neliim^ qui incremento JEgyptum 
eperit, ripas suas mutare vel ampliare f Lib 68 ad Edic' 
turn. J " The bank, says Ulpian is that which stnctif 
«' restrains the river in the natural course of its waters. 
*' If however it should sometimes experience an extra- 
" ordinary or temporary swell, owing to rains, to snow, 
" to the sea, or to any other cause, it does not change its 
" banks. No one in short has said that the Nile, which 
^' covers Egypt by iti increase changed or extended its 
" banks." B 



(10 ) 



We shall now see, from the very expressions of U1- 
|)ian himself, In the same .book 68 ad Edictum what is 
the true sense of the definition : 

" Semper certior est naturalis cursvsjiiimimim cestate 
pot'ius quam hyeme.'''* It is in summer, rather than in 
winter, that ihe natural Cv»urse of rivers is to he ascer* 
tained." Now the Battuie is, evervyear, constantly co- 
vered with water, until ihe m«>nih of August; hence it 
might be comprised even in the d'^ftnition of the bank 
given by Ulpian. As to ihe restriction which f(>llows it, 
and is indicated by vhe adversative particle iceterum^ it 
is evident that it applies to an extraordinary swell, to an 
inundation. Rains and the thawing of ihe snow, being 
ever the sole efficient causes of rivers, the only case in 
which tJlpian can have rej^resented ihem as extraordina- 
j-y circumstances, a; d have united them with other acci* 
dents, is when the body of water arising from them, 
exceeds the regular vohmie that usually encreaseg 
rivers. This is fully evinced by the concurrence of se*- 
I'eral expressions which, in a pretty short sentence, all 
present the characteristic marks of a fortuitous event 
produced by other causes than such as are indispensably 
necessary to the existence of rivers. Si quando excrevit 
ad tempus^ vd mari vel qua ;dia ratioJie, 

In thus expressing himself, it is clear that Ulpian did 
not mean to give an idea of a regular and periodical 
swell. Had such been his intention, he surely would 
have said : Si nivilms^ imbribus^ vel ?nari^Vf I alia notd 
raiioie ad (ertum ttmpus crevit and not, si quando ex- 
crevit. This restriction laid dov/n by Ulpian, is there- 
fore, as I have already observed, entirely applicable to 
inundation, of which we shall soon have occasion to 
speak. When UljJian then insiances the Nile, hib ob- 
vious intent is to establi h a distinction between a river 
regularly contained wiihin its banks, and one that pe- 
riodically overflows them ; and moreover, from the fact 
of lower Eg\ pt'^ being annually inundated, it does not 
ibllow ihat there is any manaer of reason to compare to 



(11 ) 

the land of Egypt, this country which is exposed onlvt© 
fortuitous inundations, happening at very distant peri ^ds., 

Let us now proceed to the definition in Cui ki Phili^ 
pica^ which Mr. Duponceau has contrived to distort so 
effectually, as to find in it a meaning contrary to that 
which it contains, and really presents. '* La ribtra 
del rio ae entitnd' todo lo que cubre el a_^ua d^ el qu indo 
mas cres'c enqualquh-ra tiempo del ano^ sin salir de su 
hyema y madre. " By the bank of a river is understood 
whatever is covered by its waters when at their greatest 
increase, at any time of the year, without going out of 
its bed. 

Mr. Duponceau pretends to prove from the clause, 
sin salir de sti ht/etna y mad'e^ h.u the Mississipi over- 
flows its banks when it covers the BaLture,and ihat cor- 
sequently the latter cannot be the bank of hat river. He 
likewise gives us to understand that the levees are no* 
to be considered as banks, and he is lavish of ingenious 
pleasantry in ridiculing the idea of raising dikes, in order 
to create artificial ba .ks, to supply the want of natural 
ones, (page 31 ) Nar, he proposes to me, page 36, 
the solution of this problem, at what precise point of the 
bank of a river, djes private property begin, and public 
property end ? 

I will first examine whether the batture can be consi* 
dered as covered by the effect of an inundation, while 
the Mississippi does not overflow its dikes; and after 
having sought in ihe Roman law for authorities which 
may at once define the bed of a river, and present the 
circumstances which are characterisiic of an inundation, 
I will endeavor strictly to determine the natural breadth 
that cannot be refused to us bed. Should I succeed in 
establishing this in a certain and irresistible manner, I 
shall have obtained a sufficient solution of Mr. Dupon* 
ceau's captious problem, which, after all, I might have 
set aside, by adverting merelv to what it presented of an 
Lnsolvable nature ; for as I have most clearly admiuecl 



(12) 



that beyond the precincts of towns and suburbs, the soil 
of the banks and of the bed of a river, is private pro- 
perty, it is evident that this pitiful cavil by which it is 
asked, at what point of, the bank of a river, public pro- 
perty ends, and private property begins, would entirely 
fall of itself. 

A'vtus fossam sign'Jicat per quam Jiumen d labitur. 
Harp, ad instit. Si fossa manu facta sit per quam fluii 
jiumen puhiicum^ nihilo minus publira fit. Dig. lib. 43, 
tit. 12. The bed signifies the sank channel in which a 
river flows. If the channel in which a public river flows 
be made by the labour of man, it nevertheless becomet 
public. 

Let us now apply these authorities to the case before 
us. Does not the batture, wi:h reference to the soil of 
the quay of the subjrb, form a sunk channel in which 
the river flows daring 5 or 6 months of the year? This 
point our adversaries have granted as to the fact, but 
they contest it as to the cause. JVIr. Livingston has 
maintained on the affidavit of Mr. Lafon, that the dif- 
ference of level between the soil of the batture and that 
of the suburb, a difference which consequen'^ly forms 
part of the channel in which the river flows, was owing 
merely to the adscititious earth thrown on the batture ; 
now, even admitting Mr. Lafon's declaration, what 
weight can there be in such an objection, when the text 
of the digest expressly says : si J jssa manu facta sit^ 
nihilominus publico /^" If the channel be made by 
human labour, it nevertheless becomes public. It is 
therefore uncontrovertible that under this first point of 
▼iew, the batture makes part of the bed of the river. 

The throwing up of dikes is not, as Mr. Duponceau 
would fain persuade us to believe, a measure out of the 
contemplation of the Roman law ; nay, that very law 
insists on its expediency. " Ripas fnminwn refctre^ 
munire ulilissimum est:' Dig. lib. 43, tit. 15. Biit it 
at the same time recommend* not to change the eourfie 



(13) 



of rivers by confining them in too narrow a channel bjr 
dikes. *• Si forte a^gerem vel qwvn aliam munitiojierft 
adfitbuit ut agrnm suum tue^etur^ eaque res cursum Jiu' 
minis ad aliquid immutavrrity cur ei non consulatur 9 
Pierosque scio prorsu; Jiu>nina avertisse^ alveosque ?nu- 
tasse dii^n prceiiis snis cansulunt '' t)ig. lib. 43, tit. 15. 
If, peradveniiire. the throwing up of Dikes, or a;)/ 
o hir work ,, would change in any manner the course of 
the river, why should it not be attended to ? I knov^ 
that many land-holders, in consulting the advan:age of 
their own estates, have diverted the coarse of rivers or 
changed their beds. It appears then that levees are 
permitted a.id recommended by the Roman law, provi- 
ded they do nr>t contract the channel in which the river 
fl )ws ; therefore all the channel between two levees, 
which during five or six monihs of the' year, confine the 
waters of a river, makes an integrant part of its bed i 
therefore the Mississippi does not go out of its bed 
when it covers widi five or six feet of water, daring 
half the year, a space which it leaves dry during '.he 
other six months. And indeed, were that space which 
is covered by the river at high water, to be considered 
as covered by an inundation, to what should we apply, 
on the one hand, the quando mas cresce^ since it is a 
known fact that from the time that the river ceases to 
be at low water it begins to cover the bature ; and oii 
the other hand by what characteristic properties should 
we be able to ascertain an inundation, or ra:her what 
name would there remain to give to it, since the most 
inconsiderable \ ise of the river, which would then begin 
to be no lorger at low water, would have been consid- 
ered as an inundation ? Nay we must exclude the light 
of evidence, not to perceive most clearly that the legis- 
lator understood that the effect of that utmost increase 
of water should be to cover a space periodically left dry- 
in the course of the year ; for if the bed of the river 
Had left no space dry, and if the quando mas cresce wag 



(14 ) 



to Tiavc had no reference but to the height of the water, 
it would have beea nugatory to have provided for that 
case. ^Vere it indeed consistent with the o^der of na- 
ture that a river sho'ald retain the ame exjDaase through- 
out the year, so that its increase should be perceptible 
only by the depi.h of water, it would, I insist, have been 
nugatory in the legislator to have said, " todo lo que 
cuhre el agmi /f el qiianch mas cre^cc, en qiuilqn.iera ti' 
tmpo del an 0^^"* ** ^11 that its waters cover in their high- 
est swell at any tiiYie of the year whatever ;" since the 
same space would have been covered, whether the river 
were at low water or at its greater increase. Now, as 
there can no more exist a law witho it an object, than aa 
effect without a cause, it is m )st evident from he naked 
text of Curia Philipica, that the space which a river 
covers in its highest swell, with )ut g'>ing out of its bed, 
cannot be considered as covered by the effect of an in- 
undation. 

Let us now enquire whether the characteristic pro- 
perties of an inundation, as laid down in the Roman 
iaw, do not corroborate this strict demonstration. 

Iniindatio propr'te est cum fiurmm vel imbrihus^ vel qua 
alia raiione auciu?n^ in vicinos campos ita se effandit, 
ut nee ripas nee alveuin mutet, lib* i. §ripa de flum. Hoc 
cum Jit ^ ait Justinianwi post Gajum, lib* 7. § aliud sane 
causa^ (hoc tit.) fundi proprit'tiitem non amitti. Arnold 
Vin Just. Inundatio non mut at fundi specieni : quid 
ita P ^loniam inundatio rst snbHa et brevis sive exigui 
temporisy sed ahdi occupatio est lenta ac diuturaa^ Harp, 
ad insti. 

There is inundation v/hen a river swoln by rains or 
snow, or by any other cause spreads itself over the ad- 
jacent lands, without changing its bed or its banks ; and 
in that case Justinian confirms what was said bv Gains, 
that the ownership of the soil is not lost. What is the 
reason whv inundation does not change the species of 
the soil ? It is because inundation is sudden and of 



^15 ) 

short duration, whereas the occupancy of the bed le 
slow and marked wilh diutarnity. 

Tlius we see that what constitutes inundation is so 
precisely determined, that it cannot be confounded with 
the increase of the river, which slowly covers that part 
of the bed which is left dry at low water. Lands over- 
flowed suddenly and only for a short time, so that the 
waters do not form there any excavation or work out 
a new channel, such are the characteristic and constant 
signs of inundation. Surely it is impossible to discover 
the smallest trace of these in the occupancy of the bat- 
ture by the Mississippi ; and nothing short of such an 
abuse of words as to render speech unintelligible, can 
occasion to be considered as an ipundation the periodi- 
cal increase of the Mississippi, which covers during 
five or six months of ihe }'ear a shoal contained within 
its bed, not only by its dikes, but, I v/ili even go so fa? 
as to say, by its natural ba. ks. 

It IS a fact ascertained by the observations of geolo- 
gists, that in general the sinuosity of rivers and navi* 
gable streams form by opposition salient angles which 
present elevated banks, and receding angles whose shores 
are gently shelving towards the middle of their beds. 
The little bay which forms the port of New-Orleans, 
is an additional proof of the justness of these observa- 
tions. A bluff rises opposite to the batture of the sub- 
urb Sc. JMary which constitutes one of the sides of the 
receding angle. Hence it is incontestibly evident that 
on the one side the summit of this blafF, and on the 
other the part of this batture which corresponds to its 
level, must be considered as presenti g on this point 
the natural banks of the channel forming the bed of the 
Mississippi. Now, as for the exact ascertainment oi 
this level, we cannot have recourse to a more correct 
regulator than the water itself, it necessarily results that 
all that is covered with v/ater on the side of the quay 
of the suburb St. Mary, when the river has risen to the 



(16) 

»4tinm^t of the opposite bluff, Is evidently a part of the- 
nauMal chanjnel of the Mississippi. 

Persuaded <>f the justness of these ideas, I requested 
the Mavcr of New O. leans to direct the city surveyor 
t" ascertain whether that shoal were or were not com- 
prised in the natural chianei which fv^r.ns the bed of 
the river, by meagiiringon different points the elevatioa 
of the levee added to the opposite b'>uff, a: id then pro- 
ceeding on this side, on points parallel to the former, to 
deduct that elevation from the depth at the foot of the 
levee which borders the baiture. 

The citv surveyor performed this operation on fi;^« 
different points, ard the result of it is, according to tha 
•tatement contained in the proces verbal hereto annexed, 
that before the river rises above the opposite bluff, thai 
is, above ihe natural measure of its bed, the batture al 
the very foot of the levee is covered with water to the 
mean depth of two feet three inches and three fifihs. It 
lA therefore an incontestable fact, that from the level of 
the water itself, the Batture is included in the natural 
channel or bed of the Mississippi. 

I have said that Mr. Duponceau, in reporting as my 
opinion that by the public law as well as by the Roman, 
S, anish and French laws, banks of rivers were public 
property, had onlv attributed to me a second proposition 
wholly of his ov/n invenuon, and this it will not be diffi- 
cult for me to prove. 

In treating the question of public law, I have laid it 
down as a principle, page 8, that the sovereignty, and 
not the ownership, of navigable streams with their 
banks and harbours, of high ways, and in a word, of 
all means of communication, has ever belonged to the 
government, under whatever form it may have been ad- 
minisiered ; that this sovereignty, which essentially re- 
sides m the people, is transmitted to their representa- 
tives, or to the prince appointed to govern them ; that 
k is liable neither to alienation, nor to modifieation $ 



(17 ) 

and that in short, it is merely a sovereignty of protec» 
tion and conservation. Such are the general ideas, suc^ 
the basis on which I have founded the opinion I decla- 
red, and still maintain, that the question on which we 
are at issue was evidently complex. There is nothing 
in such a definition that can warrant Mr, Daponceau'ft 
confounding this sovereignty with a public property. 
But 1 shall be asked, if it be not a public property, to 
what can possibly apply that sovereigity of protection 
and conservation ? I ansvver, to the public u^e, a right 
which is totally distinct and different from that of | /?w^/i(? 
property. ^' Udfrui jus sibi e.sse solus potest intendere 
qui habet usumfructum ; doinimis ant em fundi non po» 
tests quia qui habet proprietotem^ utcndi-J) uendi jus se^ 
faratum non habet. *' Dtj^\ liv. 7, tit. 6. The use, (he 
enjoyment to which he alone can pretend who has the 
usufruct, nor can the owner of the estate claim it, be- 
cause he who has the property has not the distinct right 
cf using and enjcwing. 

In order to obviate all objections, it was expedient 
for me to consider this question of public law in a gen- 
eral point of view, only inasmuch as I should advance 
nothing repugnant to the public law acknowledged by 
every nation whose authority could be adduced; and 
consequently what I had to prove was, that the genera! 
principles I had laid down were consonant with the dif- 
ferent systems of iheir political legislation. 

I accordingly adverted in the first place to the provi- 
sions of the public law adopted by the Romans and the 
Spaniards ; provisions which, in assigning to the bor» 
dering land holder the property of river banks, while 
they reserved to the public the undisturbed use of the 
same, necessarily placed that use under the protecting 
conservation of the people, or of the sovereign; and 
were entirely conformable to the general ideas which I 
had just presented. I next brought into view the prin-^ 
ciples of the public law of France and of England, where 

C 



(18 ) 



the king is the established lord of the shores ; but I di4 
not urge th 'se princi'ples as my own opinion ; I only 
adduced them in order to prove a fortiori, that those 
same general ideas, which I had set out with unfolding, 
were drawn from the public law of those two nations, 
because the less is contained in the more. It follows 
then that Mr. Duponceau could not, without exposing 
himself to the reproach of the most glaring disingenui- 
ty- represent it as my opinion that river banks xvere 
public popartij^ and tliat the soil of the banks was noif 
the property of the bordering land h Jder. 

Let us now examine what opinion I have advanced 
on this subject in the discussion of the point ©f civil law j 
for it is evident from all that I have hitherto urged, 
that Mr. Duponceai cannot be warranted in represent- 
ing me as having given the preference to the public 
lav/ of France or England. 

That the Roman laws might be considered as writ- 
ten reason, is a point on which I have ever seen men of 
the most correct judgment agree. The superiority of 
those laws is in no instance more remarkable, than ia 
the question now before us. Were it not that the order 
of nature is subject to mutation, insomuch that rivers 
have dried up or changed their beds, and islands arise 
within their channel, at the expense of their banks, the 
legislator might, without inconvenience, have declared 
that not only rivers, but the soil over which they flow, 
as well as their banks, were among the niimber of pub- 
lic things ; but it was necessary x^ provide for the case, 
where any of the like changes might alter the situation 
of private property, without impau'iag the use which 
the public had naturally a right to exercise on rivers 
and on their banks ; and for this case the Roman law- 
has indeed provided, by a principle of ad nirable justice, 
precision and forecast. Flumina et partus publica sunt^, 
fiparumusus publicus est jure gentium* 



(19) 



Such is strictly the doctrine from whence are derived 
all the authorities which I have cited, and to which im- 
mediately apply all the arguments I have employed in 
the discussion of the point of vivil law.^*^ I defy both 
Mr. Livingston and Mr. Daponceau to point out from 
my wh ^le work any opinion or any passage that can^ 
even by induction, be considered in the slightest degree 
contradictory to this principle of Raman jurisprudence. 

S>> far have I carried my scrupulosity in the discus- 
sion of the point of the civil law, that I have kept out of 
view all authorities drawn from the French law, and 
amongst others the respectable opinion of Ferriere, who 
positively says, in his law dictionary, at the word Port* 
" The owner of an estat-e bordering on a navigable 
river, cannot hinder a port's being attached to it for the 
public utility, especiallv as by the French law shores be- 
long to the king," This last citation was abundantly 
conclusive, and sufficed of itself to decide the question. 
I might with the more propriety have availed myself of 
it, as Messrs, Ravvle and Ingersoll, of counsel for Mr# 
I^ivingston, were of opinion that the French law must 
govern in the decision of this claim. B.it as I desired 
to meet Mr. Livingston on the ground chosen by him- 
self, I thought proper to confine myself to the provi- 
sions of the Roman and Spanish laws, as then I should 
constantly possess the advantage of arguing a fortiori. 



* I.Page 8. 2. page 14: The soil of the river bank is the private property 
of the riparious land-holders ; but it is to be understood that rhe use of the 
same belongs to the public. 3. Page 17: This use takes from the borderer 
all exclusive enjoyment of the bank, over which his right of ownership 
is absolutely similar to that which he may eventually exercise over the 
bed of the river. 4. Page 32 &33 : By this change the public, who till 
then had bad only the absolute enjoyment of the road and of the batture 
in frontof Mr. Marigny's plantation, because the soil had not yet ceased 
to belong to the latter, became thenceforth the owners of that road and 
of that batture, as to the absolute right to the soil and enjoyment, in as 
full a manner as they acquired the ownership of the soil of the streets of 
that new saburb. 



(20) 



I now ask whether Mr. Duponceau be not In a com- 
plete state of mental derangement, (for after all I would 
rather consider him as a man of crazed intellects, than 
as being capable of such an excess of disingenjousness.) 
when his refataiion rests continually on propositions of 
his own invention, diametrically opposite to the doctrine 
from which I have never deviated. 

But he is not at th>j end of Ms resourses* That undis- 
turbed use which the public h ive a right to exercise on 
the banks of rivers, opposes to the projects of his client 
an obstacle too great for him not ;o be startled at it, and 
not to endeavour to remove, or at least to diminish it. 
He therefore invokes the genius whose charitable wings 
extend as happily over the conclusion of his reply to 
Mr. Derbigny, as over Mr. Livingston's sublime pero- 
ration ;^ and that angel of mercy suddenly turning to 
an angel of darkness, inspires him with a little innocent 
subterfuge, which makes him confound L'lttus with 
Mipa^ that is, the sea shore with river banks. He at- 
tempts to prove that the principle does not extend so far 
a^ to hinder a bordering land-holder from building on 
the bank of the river, and he cites this passage of the 
Digest : in littorey jure gentium^ cedificare hcere, nisi 
lisus publicus impediret, *'■ It is permitted by the la>V" 
of nations to build on the shore, provided the public 
use do not suffer thereby." But unfortunately for Mr» 
Duponceau, this deception cannot impose on any one. 
The di-tinction between littus and ripa^ is too well es- 
tablished. Ripa est proprie fuminis siciili littus Maris, 
Harp. ad. Inst. *^ Bank is a term properly applicable 
to a river, as shore is applicable to the sea." The text 



*See Mr. Diiponceau's last pamphlet, page 35, and Mr. Liviasjston's 
Address to the people of the United Sfates, page 37. It is astonishing, 
some will say, how great geniusses meet : but is there not still more rea- 
son to think, that great masters have sometimes cerUia iJarasitical tine-' 
tures tbat discover tbeir coDipositiQ&s ? 



(21 ) 



is'no less clear by the distinct and different dcnnitiou 
it gives of the bank. 

Inst* lib, 2. tit, 1, § 4. Riparmn usus publicics est 
jure gentium^ sicut ipiiius JlumiuiB, ;< itaque navrs, ad 
eas uppellere^funes arborihin ibi natis religare^ onwi all* 
quod in his reponere^ cui-Ubet liberum est sicut per ipsum 
Jiumen navigare, Sed proprietas ecuum illorum est quo-' 
rum prcediis hcerent : qua de causa arbores quoque iit 
iisdem natce^ eorumdem sunt. 

Ibidem § 5. LiUoricm quoque usus publicus cst^ et juris 
gentium^ et ipsius maris ; et ob id cuilibet liberum est 
casam ponere in quamse recipiat^ sicut rct'ia siccarey et ex 
viari deducere, Proprietas auiem eormn, potest inteU 
ligi nullius esse: sed ejusdem juris esse cu jus et mare^ et 
qucesubjacet mari terra vel arena. 

The use of banks is public by the law of nations, in like 
manner as the use of the river itself ; v/herefore every 
one has the same right to come to land there with a ves- 
sel, to tie the same to the trees there growing, or to 
discharge a loading there, as to navigate the river itself. 
Yet the property of banks belongs to those whose lands 
border on them ; wherefore the trees there growing do 
likewise belong to them. 

The use of shores is also public, both by the law of 
nations and by that of the sea j and it is for this reason 
that any one may build a h j.t there for shelter, dry his 
nets there and draw them out of the sea. It may be 
observed that the ownership of them belongs to nobody, 
and that they are of the same common right as the sea, 
or land or sand which it covers. 

Dig. lib, 41. tit, 1, § 14. " De Littore et JEdrflcio ibi 
positoJ" 

^od in littore quis ccdi/lcaverit, ejus erit : nam ditto- 
ra pubiica non ita sunt^ uteaquce in patrinvmio sunt pop- 
liliy sed ut ea quce primwn a natura prodita swtt et in 
nullius adhuc dominium pevvcnerunt : nee diss'unHis con-^ 



( 22 ) 

(Ji^io eon/m est^ otque pisczum et ferarUm qvce sitnul af^ 
que afjpreki'nsa: :-,unt sine dubio ejus^ in ciijus potestatettt- 
pervenerunt^ domhiii fiunt, 

Fiudem § \5, dt' JEdificio in r'tpa posit o, 
," ^n autnn in ripd jlhmiuis cedijicat non suumfacitC^ 
" Of the shore and of buildings there erected." 

What any one has built on the shore, shall belong tO' 
him, for shores are not public iii the same mauner as 
things which are of the patrimony of the people j but 
they are public as are the things which nature presents 
and have not yet come under the dominion of any one ; 
nor is their condition dissimilar from that of wild beasts 
and fish, which, as soon as caught, are doubtless under 
the dominion of those in whose power they have fallen. 
*' Of a building erected on a River Bank." 

" But he that builds on the bank of a river does not 
produce any thing that he can claim as his property." 
This distinction is also cleaily laid down in book 43, 
tit. 8. (and not tit. 9.) for the shores of the sea, and tits. 
12, 13' and 15, for banks of rivers. Adversus eum qui 
molem in mare projecit^ interdictum utile compctit ei cut 
forte hcEC res nocitura sit : si autem nemo du7nnum sentit^ 
tiiendus est is qui in lit tore csdijicat, vel moleju in 7nare 
jacit. 

'' In littore jure gentium md'ijicare^ respondit Sccevola 
iicere^ nisi usus puhlicns impedirety 

He who might suffer detriment from a mound's being 
thrown up against the sea, has a right to oppose the un- 
dertaking ; but if it be detritnenai to no person, he is 
to be protected who builds on the shore or throws up a 
mound against the sea. 

Scaevola made answer, that by the law of nations it 
was permitted to build on the shore, provided it were 
ttbt inconsistent with the public use.'* 

But the provisions of the Dgest wHh regard to banks 
6f rivers are entirely different : and far froai permitting 
tbe building a house on a bank, they allow merely the 



(23 ) 

ariaking or repairing of dvkes, and that only^oti cnndi* 
tion that neither the navigation or anch >rage be i npaired 
thereby. See book 43 of Dig. tit- 12: dt; fiumuiibn,^^ 
ne quid in Jlumine publico rif)a v^ ejus Jiat, tit. 13- ii^ 
quid quo aliter aquujihmt. tit. 14. de ripa miinitnda. 

The reason of this ditference is very obvious ; for the 
use of a river whose banks might be obstructed by 
buildings would be, if rot absoli.ttlv null, at Itabt very 
incommodious. Such is the doctrine of Harpprichtj 
who coincides with Rittenhouse. 

Rdiio cur ripnrurn iiaus sit publicuf: juris gentium^ 
hccc ass^gnuri potest; quia alioqui, JI,,imnis si, e rifjci 
^aliret^ nut p line nullus aut ctrt.^ incomm:.di(jr esi^t'tfu- 
turns us hsJ''' Ha. p. ad irist. dc ripa* 

Finally the Spanish law is neither less clear, nor less 
ex jilcit on diis head : like the Roniaa law, i. permits 
the erecting of huildings on the sea shores, aiiu forbids 
the same on the buiiks of rivers. 

En ia ribera dr. la mar todo ome puedt faz-. r casa, ley* 
4?. ttt. 28. 3 part, 

llioHno., nin canaU nin casa^ 7vn tortt\ nin cabana^ 
nin olro tdijicl. niaguno^ non puedc ningunj ome fazer 
nuevaiurnte en los rios po- lus quales ^o.s ho>nes andan 
<^on sus ntroios^ ni en 'as ri'^eras dr etj po: que se em^ 
bargasse el uso comunalde ellos, o si a guno o fiziesse de 
nutvoy ofuessef cho anti^^-jamente, de que vtm sse dam 
jfl/ uso comunal^ debe ser d^r ribido, Ibi lem^ ley. 8. 

*' Any one may b.-ild a h'juse oo the sea bhv..re, but 
no one is permitted to construct a mill, or cut a car-.al, 
or build a house, turret, hut, or any edifice whatever, on 
navigable rivers ^r 072 rhtir ba^ku as ihat -.vould ob- 
struct the common use thereof ; and should any one 
hereafter execute aay such works, ,)r if anv such have 
been heretofore exec uted. the same bhall be demo^ 
lished." 

V 

The law passed by the legislature of Orleans, is not 
therefore, an immornl law, as Mr. JUuponceau would 



(24 ) 



fain persuade us, page o7» It is on this point merely 
the confirmation of the civil law which governs this ter- 
ritory, and it rests upon the immutable basis of justice. 
Trulv immoral indeed appears to me ihe law which 
Mr. Livingston attempts to establish on this subject, by 
which every bordering land holder might se'ze on the 
bed and banks of ihe river, for the puipose of laying, for 
his private advantage, regardless of the laws and mter- 
ests of scicieiv, an odious contribution, an arbitrary im- 
post on navigation and commerce. Huw has Mr. Du- 
ponceau dared to tax with immorality, and attribute to 
party spirit, a law that bears the true stamp of Roman 
legislation ? What a horrid blasphemy ? Was ever 
oblivion of all principle, of all human respect, carried to 
a greater length ? And must not a man be determined to 
put on the livery of the most absurd ignorance, in order 
to escape the reproach of downright perversity, when 
he thus presumes to transform into instruments of fac- 
tion, legislators who have attempted no innovation, and 
v/hose only offence is that they have not shut their ears 
to the voice of reason consecrated by the wisdom and 
experience of ages ? 

" Thanks to Mr. Thierry, says Mr. Duponceau, the 
batture is again an alluvion. It has undergone many 
changes in the course of his discussion. 

No, sir, I do not wantonly invade the noble privilege 
you enjoy of perverting reason. Throughout the v. hole 
course of my discussion the batture has been only what 
it really is : but after having considered it under its ap- 
propriate relations ; after having demonstrated that it 
could not be an alluvion, as I have proved by argu- 
ments so ificontescible that you have not even attempted 
to impugn them, I have gone still further : I have shewn 
that even were the batture an alluvion, your client could 
have no claim to it. Now, there is a wide difference 
between a supposition and a reality ; smd if I have hy- 
potheticaliy considered the batture as an alluvion, in or- 



( 25 ) 



^er to force you ev^en from your last entrenchments, it 
surelv does not thence follow, that I have acknowledged 
it to be essentially such. It is therefore with some- 
thi; g worse than ill grace that you attempt to represent 
me as a man inconsibtent with himself. 

As to the third proposition by which I have laid it 
down that the right of alluvion is inherent in the owner- 
ship of a riparious field, and not in the ownership of 
city property, Mr. Duponceau declares thai he has no- 
thing to say on this point, further than that the civil law 
absolutely says nothing of what I have slated. The au- 
thority which I have quoted (page 28 of my first pam- 
phlet) proves, in his opinion, that praedium means a 
city property as well as a country estate ; but, says 
he, let it signify what it may ; because the civilians 
in the examples by which they have illustrated the prin- 
ciples which regulate the law of alluvions, may have in- 
stanced ^ field or 2ifarm^ and not a house in town^ does 
it follow that alluvions do not accrue to the owners of 
city property? Surely, continues Mr. Duponceau in. 
the most overbearing tone, such an argument does not 
require a serious refutation. 

I might surely dispense with taking notice of this 
further than to refer Mr. Duponceau to what I have 
written on this subject, and I should be much better war- 
ranted than he is, to conclude that such arguments as his 
require no refutation ; but I will not let slip a fresh op- 
portunity of proving, not indeed to him, (for he is one 
of those to whom it is impossible to demonstrate any 
thing, were it even a physical or mathematical truth) but 
to every impartial man, that the doctrine of the Roman 
law is sufficiently explicit with relation to the proposi- 
tion which I have laid down. 

What first strikes us, and is the very point that must 
fix our attention, is that the text ascribes the right of 
alluvion only to the owner of a field. *' Allwuio incre- 
mentum laUns quod 2i^xojlumen adjicit, Pr aster ea quod 

D 



(26 



agro nostro fiimen acJjkit jure gentium nobis acqulrU 
tur,^^ Dig lib. 41, tit. 1. " In SLgrh limitatis jus allw 
vionis locum non habere constat, ^^ Ibid. lib. 49, tit. 1. 
Alluvion, an imperceptible increase which the river adds 
to a field. What the river adds to o\xt Jield^ accrues to 
us by the law of nations. The right of alluvion does 
not exist as to limited ^^/^5. 

It is therefore evident that whether in granting or re- 
straining the right of alluvion, the text makes no appli- 
cation of the right, to any but rural property. 

As to the acception of prcedmm^ I proved in the out- 
Bet, page 28, that unaccompanied by the epithet urba- 
Tium^ this word could not mean a town property ; and I 
then adduced the definition of prcedium given by Mo- 
des iuus, who lays it down that prcedium characterises 
at once the po= session and the field ; '' nam et ager et 
ijossessio fi'jus apptllationli fPrcediiJ species suntJ* 
For the field and the possession constitute the two spe- 
cies of prcedium. To authorise Mr. Duponceau to set 
aside so slightingly the respectable authority of the Ro- 
man jurisconsults, he ought at least to have opposed to 
thai clear and precise definition bomething less suspi- 
cious, and less insignificant than the jurisconsult of 
Philadelphia ; he ought, for instance, to have extracted 
from the mstitutes, some passages in which it would 
have been evident that prcedium was used without the 
epithet urbanum^ to s gnify a town property ; but this I 
defy him to establi >h by any kind of authority, while 
on the other hand, I am ready to adduce various cita- 
tions which prove that, standing without any epithet, 
prcedium can designate no other property than a farm or 
such like rural estate. 

Non potest quis vendere prsedium et retinere agrico- 
las in dicto prsedio existentes. Barth. 
ll.Imper. Constantinas Aug. ad Dulcitium consulem. 

Si (juis prsediuiu vendere voluerit v^l donare, re^ 



(27 ) 



tinere sibi transferendos ad alia loca colonos, pnvati 
conditioner non possit. 

No person can sell a farm, and reserve to himself 
the husbandmen attached to it. 

11, The emperor Constantine Aug. to the consul 
Dulcitius. 

If any person desires to sell or make donation of a 
farm, let him not be permitted to retain to himself, by 
a private condition, the husbandmen, in order to trans- 
port them elsewhere. 

From a number of other citations on which I might 
rely, I will make choice of two which appear to me the 
more conclusive, as they prove by induction that if 
prcediwn means a farm, or such like rural estate, it can- 
not designate a town property. 
V. Imper. Valent. & Valens Aug. ad Oricum P. P. 

*' Dumini praediorum id quod terra prsestat accipiant, 
pecuniam non requirant quam rustici optare nonaudent: 
nisi consuetudo prsedii hoc exigat. 

VI. lidem Aug. & Gratian. Aug. ad Germanicum. 

*• Omnes omnino fugitivos adscriptos colonos, vel 

inquilinos, sine uUo sexus, muneris, conditionisque dis- 

crimine ad antiquos Penates ubi censiti, atque educati, 

natique sunt, provinciis prsesidentes redire compellant.'* 

The Emperors Valentinian and Valens Aug. to Ori- 

cus. Prefect of the Prsetorium. 

Let the owners of farms receive what the land pro- 
duces, and let them not require money which the pea- 
sants dare not desire, unless it be the custom of the 
farm. 

lidem Augusti and Gratian Aug. to Germanicus. 

Let those who preside over the provinces compel all 
the slaves whether attached to the soil or to town ser- 
vice, to return, without any distinction of sex, employ- 
ment or condition, to their ancient homes (penatesj 
where they were born and enrolled in the census. 
^ If pr(sdium had signified indiscriminately an estate 



(28 ) 



either iii town or in the country, why should the empe- 
rors Valens and Valentinian, after having emplo) ed it 
to designate a farm, not have continued to use it in the 
subsequent oidinance, in which that expression must 
necessarily have found its place, as it related to slaves, 
some of whom were attached to husbandry, and others 
to town service ■ If thi Roman jurisconsults had indif- 
ferently attached to this term an idea common to a town 
property and to a country estate, why had they recourse 
to another word to express this community of idea? 
Why have they written prnntes instead of prcedium ? 
The reason is this, that piaedium signifies indeed a farm 
or any other rural estate, but does not equally mean a 
town property ; whereas PtJiatiS indiscrimmately pre- 
sents to our mind both those kinds of real property. 

Admitting the justness of this distinction, Mr. Du- 
ponceau will ask whether from the law';* granting to the 
ov/ner of a riparious field the right of alluvion, it fol- 
lows that it refutes that right to the owner of a riparious 
town property ? Were I not convinced that there is 
much more artifice than ignorance through the vv^hole 
production of this lawyer, I would endeavor to bring 
him back to the first elements of Roman law, by remind- 
ing him that what the law hath not said, neither ought 
we to say, and that where the words of a law fail, the 
provision itself fails in like manner. '' Quod lex non 
elicit, nee nos dicere debemus, et ubi deficiunt legis ver- 
ba, ipsa quoque deficit dispositio." Harp, ad insti. 
Must not Mr. Duponceau have renounced every idea 
of justice, or rather must he not be utterly unable to 
discover a defensible position, when he advances a para- 
dox which is expressly refuted by the first maxims that 
present themselves to our meditation in the study of 
the civil law ? " Contra legem facit, qui id facit quod 
lex prohibet ; in fraudem vero qui, salvis verbis legis, 
sententiam ejus circumvenit." Paulus, dig. lib. 1. 

*' Fraus enim legi fit, ubi quod fieri noluit, fieri au- 



(29 ) 

tern non vetuit, id fit ; et quod distat reton apo d^a- 
noias^ id est dictum a sevtcniia, h x disiat fiaus ab eo 
quod contra legem fit." U.p;an, dig. lib. 1. 

He acts contrary to law vvh > dues what the law for- 
bids, and he fraudulently evades the law, who, in ad- 
hering to the words thereof perverts the se.:se. 

It is a fraudulent evasion of law, to do what it in- 
tended should not be done, but the doing of which it 
did not forbid ; and the difference that exists between 
the letter and the sense, is the same a9» that which ex- 
ists between the violation, and the fraudulent evasion of 
law. 

After authorities so conclusive, it can no longer ap- 
pear strange that in the im|)Ossibdity of proving that 
the law of alluvion conld admit of such a laiitude of 
construction, Mr. Dup-ivxeau was forced to sts ut off in 
dictatorial state, telling me dial such an argument re- 
quired no serious refutaiion. 

Let us novv proceed to the discussion of the fourth 
and last proposition by which I have established that 
Mr. Gravier had alienated the accessory with the prin- 
cipal, 

" If^ says Mr Duponceau^ Mr, Gravier has alienated 
those front lots to individuals^ whtther Che rig-ht to allu^ 
vion bego ie ah'^g xmth them is merely a question bttween 
him andthrm^ and the United States kave nothiaif to do 
tvith It; if to ihe puhlie^ or to the government^ Mr* 
Thierry must produce ilu conveijance^ 

This dilemma is the only ingenious argument I have 
found in Mr- Daponceau's reply. 1 must own that had 
it been generally suppoited b\ such specious reasoning, 
I should have been disj.osed to excuse whatever cavils 
it might contain, in consideration of the art that dis- 
guised them. But wh > can repress the emotions of in- 
dignation when he sees tru.h exposed to continual out- 
rage, and the most certain principles denied and brought 
into question, by the most extrav agaut paradoxes i Al- 



(30) 



though this last argument be at bottom but a sophism ; 
it has at least, over the rest of Mr. Duponceau's disser- 
tation, this striking advantage, that it rests only on two 
propositions equally plausible, and which to be admit- 
ted, would require merely to be applicable :o the facts 
on which we are at issue. This is not a question of a 
pure and simple alienation of the principal to several 
individuals, who thence might have an exclusive tide 
to the accessory ; the subject in discussion is the con- 
version of a plantation into a suburb, whereby, as wa 
proved, the nature and primitive rights of that estate 
were changed. Now, in this operation the government 
evidently interposed between Bertrand Gravier and die 
several purchasers of lots ; for it appears by the plan of 
the surveyor general, signed and acknowledged by Ber- 
trand Gravier himself, that the government reserved for 
the public a quay, streets and two squares. Mr. Dupon- 
ceau therefore argues against fact when he presents as the 
strict basis of his reasoning the alternative of the dis- 
tinct alienation of the principal eidier in favour of pur- 
chasers of the front lots, or in favour of the Spanish 
government whose title now belongs to the United 
States. As to the conveyance which he requires me to 
produce, I observe that it has been produced already, 
and that the attorney general must be in possession of 
one of the original plans ^^igned by Bertrand Gravier, 
in v/hich the streets, the squares, the quay and the bat- 
ture under the denomination of riai/a are very distinct- 
ly acknowledged and designated by Bertrand Gravier. 
If Mr. Duponceau requires any oiher conveyance for 
the quay and for the batture, I see no reason why he may 
not pretend that John Gravier continues to be the owner 
of the soil of the streets, unless we exhibit to hinr a formal 
deed of sale by which his ancestor, B. Gravier, has ex- 
pressly conveyed the soil of the streets. But the Ro- 
dman law as also the Spanish, has precluded these liti- 
-gious difficulties, by classing streets and quavs amongst 



(31 ) 

those things that constitute universal property,rf* unt- 
vcrsHatis^ and by declaring that navigable rivers h h'w- 
bors are of the number of public things : it is true that 
by a last effort of Jesuitical subterfuge he attempts to 
insinuaie that that citation relative to harbors^ is ap- lica- 
ble to sea ports alone, but unfortuna^^ely the authorities 
of the Roman and Spanish jurisconsults are on this 
point also, in opposition to the sound doctrine of the 
lawyer of Philadelphia. 

" Duo hie quae publica sunt, adferuntur, flumina au- 
tem et portus. " Est atitum partus (a portando nomen 
habens) /ocus in mari aut Jiumine conclusiis et viiinitiis 
quo importantur merces et wide exportw-tur^"* (De 
verb, signif.) Idem est et navibus statio,hoc est, locus 
accommodatus ad recipiendas naves ut illic tuto stare pos- 
sitit adversus injuriam prsedonum aut tempestatum. 
Harp, ad Inst. 

We are here presented with two things that are 
public ; the river and the ports. The word port, deri- 
ved ft om porture^ is a place on the sea or on a river, in- 
closed and defended, whither goods are imported, or 
whence they are exported. It is also an anchoring place 
for vessels, that is, a place accommodated for the recep- 
tion of ships, so that they may there be in safety, exposed 
neither to pirates, nor to tempests. 

*' Puerto de la mar o rio es el lugar en que estan los 
naves, y se cargan y descargan, mueven y acaban sii 
viage como se dice en el derecho civil y real." Curia 
Philipica Hbro. 3. capit. 1. § 35. 

A port of the sea or of a river is the place where 
ships lie, where they load and unload, whence they sail, 
and where they end their voyage, as it is laid down in 
the ro) al and civil law. 

Mr. Duponceau says that it is on the strength of this 
doctrine that I thought I might so securely rely as to 
make the concession of six acres of batture presumed 
to have been annexed to the Gravier estate since 1763. a. 



(32) 



concession to which he takes care to oppose the objectiong 
made to me by Mr. Derbigny in the following terms ; 
" You have brought the cause to this point, that we must 
prove that no batture existed at the time when the Gra- 
vier estate was converted into a suburb, or we are left 
wiihout resource. But the contrary is too well found- 
ed." I shall therefore, says Mr. Duponceau, leave 
Mr. Thierry to settle this matter with his colleague, 
and make no further answer to his argument. 

The affair has already been settled with Mr. Derbig- 
ny, nor will it be less difficult for me to settle it with 
Mr, Duponceau. 

I had from the beginning the advantage of proving 
that this doctrine was that of the Roman or Spanish law, 
which is to guide the judges in the decision of diis affair, 
moreover I have not made a concession of six acres of 
bitture. It >vas six acres of alluvion that I said Mr, 
Gravier had probably united with his plantation ; on 
account of :he diff.ire ice of six acres between the first 
survey made by Mr. Devezin and the one lately made 
by Mr- Mansay. My expressions are these, page 37 : 
*' Of tins differeiice, the cole cause to be assigned is the 
successive rei .li )n of different portions of alluvion, of 
whxh Bertrand Gravier, or thuiie from whom he holds^ 
may have availed themselves. ' Mr. Duponceau has in- 
deed the strongest mf>tives to make a last effort to con- 
found a batture with alluvion land, aUho' these two ob- 
jects be as different in their nature as in their effects • 
but as he has not even attempted to weaken the strongly 
marked features of that dissimilitude which I have de- 
veloped in my meaioir, from page 13 to page 18, it is 
evident that I am still warranted to insist on it. What 
can then result from Mr. Derbigny's objection ? Had 
it ever been proved on the trial that the Batture existed 
at the time that B. Gravier converted his estate into a 
suburb, it surely could not be thence iufjsrred that nei- 
ther his ancestors nor he had availed themselves of anv 



(33) 



portion of alluvion since the survey made by Mr. Deve- 
zin ; and, as I have fully established this point, that a 
batture is not alluvion land, I see not in what, or how 
the avowal of this last circumstance can have injured our 
cause. Nor can I conceive any difficulty in reconciling 
the opinion of Mr. Derbigny with mine. Intent, as I 
have said, on his answer to Mr. Duponceau, he had ta- 
ken but a cursory view of the writing I had just publish- 
ed, and had not been struck with the importance of my 
distinction, the accuracy of which was, however, so obvi- 
ous, that it naturally presented itself to his mind in the 
course of his discussion ; and with this Mr. Duponceau 
does not fail to reproach him in his reply.* Nothing, 
therefore, I repeat it, appears to me less diO.cult than 
this reconciliation of opinions, as on the one hand, mine 
has not varied, and on the other, the involuntary error 
committed by Mr. Derbigny, in a few lines written ia 
haste, after a too cursory reading of my work, is effaced 
and more than amended by a profound discussion, in 
which he has, as Mr. Duponceau acknowledges, given 
a luminous developement of ihe very arguments I had 
used, but which my inexperience in forensic warfare 
had not permitted me to present in the most advantage- 
ous light.:): 

Thus have I faithfully followed Mr. Duponceau to 
the end of his dissertation. I have neither inverted the 
order of his arguments, nor altered his text, and I may 
confidently say, that I have strictly conformed to the pro- 
gress of his discussion. I now leave to the impartial 
reader to decide on the merit of his objections. 

As to the extraneous observations with wh^ch he con- 
cludes his work, since he acknowledges that they have 
nothing to do with the present question, I hope I shall 
incur no reader's displeasure by declining to prolong a 
refutation which would become the more drv and tedi- 



*Page 25. :j:Page 13. 

E 



(34) 



ous, as it would rest merely on points not properly ap- 
plicable to this case. 

I have only to add, that in the appendix will be found 
some documents, which may serve as a full answer to 
those annexed to Mr. Duponceau's publication. 

New-Orleans^ lQ>th May^ 1809. 



APPENDIX. 



O 



N this day, the 23d of April, of the year one thou- 
sand eight hundred and nine, and the thirty-thirdof the 
Independence of the United States, 

I, James Tanesse, City Surveyor of New-Orleans, 
conformably to the directions addressed to me from the 
honorable James Mather, Mayor of the said City, for 
the purpose of ascertaining, first on dift'erent points of 
the bluff opposite to the batture of the suburb St. Mary, 
the elevation of the levee raised above said bluff, with 
reference to the level of the soil ; and afterwards, on the 
said batture, the depth of the waters at the points paral- 
lel to the said bluff, in order to discover, at the foot of 
the levee, by the deduction of a depth of water equal to 
the height cf ;he levee on the opposite bluff', whether the 
said batture make part of ihe bed of the r"ver, before it 
rises to its highest increase above the natural bank, of 
which the opposite bluff gives the indisputable measure> 
repaired to the opposite bank, where being, I proceeded 
to the operation herein before indicated, in presence of 
Messrs. Zeringae, (.he son) Degruys and Mossy, plan- 
ters on the said shure, and by the computation of the 
different levels taken, I have ascertained : 

1st. That the portion of the levee added to the bluff 
opposite to the batture in front of the limit of the suburb 
St. Mary on the side of the city, presents an elevaiion 
of 14 inches. 

2dly. That the portion of levee added to the bluff op- 
posite to the batture in a line with Gravier street, pre- 
sents an elevation of 8 inches. 



odly. That the portion of levee added to the bluff op- 
posite to the batture in front of Poydras street, presents 
an elevation of 5 inches. 

4thly. That the portion of levee added to the bluff 
opposite the batture facing Girod street, presents an el- 
evation of iwo inches. 

5thly. That the portion of levee added to the bluff 
opposite the batture facing St. Joseph street, presents an 
elevation of 8 inches. 

Which different computations give, as the mean term 
of the elevation of the levee extending along the bluff 
opposite the batture, a mean height of seven inches and 
two fifths. 

And after having terminated this operation, I re- 
quested Messrs. J. B. Degruys, J. Zeringue, F. Bernou- 
dy, Robin de Logny and Mossy (all land-holders on the 
bank opposite to the batture) to sign the minute of the 
process verbal in this place. 

Signed, Joseph Z.-ringue^ (the son) Bernoudy^ 
y, B, Di'gruys^ Robin Delogr^y^ Mossy. 

And immediately after I crossed over to the oppo- 
site bank, where the suburb is built ; 1 took soundings 
at the different places opposite those where I had measu- 
red the height of the levee on the bluff of the other bank; 
and those different operations gave me the following re- 
sult : 

At the foot of the new levee, at its limit next the city, 
three feet three inches water. 

At the place in a line with Gravier street, at the foot 
of the new levee, three feet nine inches. 

At the place in a line with Poydras street, at the foot 
of the new levee, four feet. 

The new levee not having been extended as far as 
Girod street, and the quay being so much encroached on 
by the river as to leave no more than sixty feet distance 
between the houses and the water's edge, I sounded at 
fifty feet from the edge, in order to complete a space of 



one hundred and ten feet, equal to that between thehou^,- 
es of the quay and the edge of the new levee, and I there 
found one foot seven inches of water. 

For the same reason, I sounded at fifty feet from the 
water's edge at the place in a line with St. Joseph street, 
and I there found two feet of water. 

The mean term of the depth of water at the foot of the 
levee which borders the batture, being two feet eleven 
inches, on deductmg from that depth the mean height 
of the levee raised on the opposite bluff, it results that 
the river, before it rises above the said bluff, which is the 
incontestible measure of its bank, has covered the bat- 
ture with a mean volume of two feet three inches and 
three fifchs of water; aud that consequently it strictly 
makes part of its bed, and the more so, as there is not 
a single one of the point.^ of comparison which we have 
here laid down, which does not present it covered with 
water before the river has attained the summit of the 
bluff which is opposite to it. 

The said process verbal being thus masle and closed 
in presense of the above named gentlemen, they signed 
the same with me, on the same day, month, and year as 
mentioned in the other part. 

Signed, Saturmn Bruno^ Bte. Rollind^ A. VUlamil^ 
B. RollaniJ, guardian of the children of 
the late widow Lahatut^ Bomibel and Jh, 
Gournie*-^ Livoy, -widow Deverbois^ J, B^ 
Degruij^ y. Pcydras. 
Signed, TANESSE, City Surveyor. 



SUMMARY VIEW 



SUMMARY VIEW OF THE PROCESS VERBAL. 



Heig-ht of the levee, 
added to the bkiff 
opposite the Bat- 
ture. 

1st. Limit next the Ci- 
ty, 1 foot 2 inches. 

2d. Facing Gravier 
Street, 8 inches. 

3d. Facing Poydras, 
5 inclies, 

4d. Facing G'l'od 
Street, 2 inches. 

5th. Facing St. Joseph 
Street, 8 inches. 



3 feet 1 inch. 



Depth of water on 
the Batture at the 
foot of the levee. 



3 feet 3 inches. 

3 feet 9 inches. 

4 feet. 

1 foot 7 niches. 

2 feet, 

14 feet r inches. 



Elevation of the water 
covering theBatture 
in the natui al meas- 
ure of the river. 



2 feet 1 inch. 
3 feet 1 inch. 

3 feet 7 inches. 
1 foot 5 inches. 

I foot 4 inches. 

II feet 6 inches. 



The sum of the five parallel points being 11 feet 6 in- 
ches, the mean volume of water covering the Batture in 
the natural measure of the bed of the river, is 2 feet 3 
inches and three fifths. 



Extract fron the Archives of the Ccihildo^ deposited in 
the office of the City Council of New-Orleans, 

PETITION of Claude Franfois Girod^ presented 
on the %UhMai}^ 1801. 

^ TRANSLATION. 

M. I. A. 

Claude Francois Girod, a citizen and merchant 
of this city, represents to you with due respect, that 
v/ishing to* have a Flour Mill constructed by a skillful 
person who is about to leave this town, having other 
buildings to attend to up the river, it is necessary to him 
that your lordships grant him for that purpose an ade- 
quate space in front of his house, situate on the extent 
of the suburb St. Louis, lying between the river and the 
roj^al road. 

In the extensive space of that ground, the contem- 
plated establishment cannot be any way injurious, whilst 



( 39 ) 

■■J 

Its advantages may be of great pu'olic utility, particu- 
larly to those who possess a great many slaves, the nat- 
ural sloth and indolence of slaves making them suffer 
for want of nourishment, rather than take the trouB'le to 
pound in wooden mortars the allowance of corn which 
their masters give them, which being roasted on coals' 
and eaten without having been baked or boiled, as is 
the custom, is not only unwholesome, but is attended 
with considerable waste ; whereas, to the saving that 
Ivould be made by reducing the corn to meal, would be 
added the advantage of making of it wholesome nour- 
ishment, besides the conveniency of using it without 
the -trouble of pounding, or of any other preparation 
than that of baking or boiling. 

To afford more facility to the planters who send their 
grain to mill, the petitioner proposes to form a depot 
of meal, from which may be taken a portion equivalent 
to the grain brought to the mill, as soon as delivered, 
without any deduction except the moderate proportion 
fixed as a compensation for the w^ork of the mill, ac- 
cording to the usage and custom existing throughout 
the Spanish dominions. 

In case of dearth or scarcity of bread, said meal may 
be a great resource towards supplying the public want 
in mixing it w^ith wheat, or in making corn bread, such 
as is used in many countries. 

In consideration of the apparent advantages to the 
public, to be expected from said establishment, the pe-^ 
titioner trusts in the known zeal with which your lord- 
ships protect and promote the welfare of the country, 
that you will please to grant him your respectable appro- 
bation for the execution of a project so useful, permit- 
ting the petitioner to form it on the ground indicated, 
under your lordships' auspices, and on condition, if your 
lordships think proper, of the petitioner's paying what 
MAY EE THOUGHT A JUST TiiiBUTE for the grouud that 
the works will occupy, confining it to forty feet in fronts 



( 40) 

for the mill and the dwelling of the miUer, and a pro= 
portionate extent in the interior, for a shed for the horses 
working the machine. 

From the motives above declared, may it please your 
lordships to grant the respectful petition of the under- 
signed, as he hopes from your justice and goodness. 
(Signed) C. F. GIROD. 



REFUTATION 

OF MR. LIVINGSTON'S PAMPHLET, 

entitled: 

An Address to the People of the Uni- 
ted States^ &c. 

Mr. EDWARD LIVINGSTON, formerly an 

inhabitant of New -York, has lately published an address 
to the people of the United States. His design in send- 
ing this publication to Washington city, was to persuade 
the members of Congress that he was a victim of op- 
pression, and that the President of the United States 
was his oppressor. We intend to follow Mr. Living- 
ston page by page, nor shall we find it very difficult to 
prove that never has any writer more evidently strayed 
from the beaten road of sincerity to walk in the crooked 
paths of the mo it hypocritical and refined calumny. 

Mr. Livingston, in the very first page of his virulent 
philippic, observes that ^Vthe selection of a remote scene 
for the exercise of arbitrary power, and of an unfriendly 
or unpopular individual for its object, renders the case 
more dangerous from the apathy with which we regard 
distant eventSj and the ready indulgence we accord to 



(41 ) 



illegal measures when they affect those only whom we- 
dislike." 

This exordium is not wholly void of address ; but as 
a dexterous adversary Mr. Livingston ought to have 
perceived in it motives much more explicative of his 
conduct, and that, on that account, any other exordium 
would'have been at least preferable. In effect, since he 
adverts to a scene, for Mr. Livingston never acts a sce- 
nic part with such success as when he wishes to appear 
to be prompted by principle, he ought to have been sen- 
sible that his argument might be instantly retorted by 
this reply ; that to himself indeed it was of particular 
importance to make choice of a remote scene, as there 
alone he could unfold and put in practice the vast theory 
of his system of spoliation ; and that since he had con- 
trived so far to impose on the judges, as to cause the bat- 
ture to be adjudged to himself; he alone haa cause of 
felicitation in the remoteness of the scene which he had 
so happily chosen, in hopes that the apathy with which 
events so distant are regarded, would secure to him the 
enjoyment of his iniquitous and fraudulent acquisitions. 
But, thanks be to Gud^ in spite of all the wretched in- 
trigues of the faction ofClark^ Livingston, h Co. to per- 
suade the inhabitants of this country that they were a» 
object of aversion to the government, the Louisianians 
have found in Mr. Jefferson a friend and protector* 
The paternal vigilance of the chief magistrate of ihe 
Republic, soon discovered that the mildness of their 
manners, their characteristic frankness and rectitude, 
rendered them worthy of all his benevolence ; nor has 
he suffered the quondam mayor of New- York, notwith- 
standing all the artifices that had served as a prelude to 
the decision of the Batture cause, to repair his fortune 
at the expence of this country. 

In speaking of the motives which induced him to sub- 
mit his cause to the public, Mr. Livingston thus artful- 
ly expresses himself ; 

F 



(42) 

** Honest creditors, who see the fund accumulated 
during four years of indulgent delay, suddenly placed 
beyond their reach ; a wid )W and two infant orphans 
claiming mv professional exertions to resist that illegal 
violence which has seized rheir only means of support ; 
a large family f r whom I am bound, as well by duty as 
affection to provide : these are claims on which I rely^ 
to justify the measures I am forced to pursue." 

In our opinion Mr. Livingston's honest creditors 
could have cause to com r lain only inasmuch as he had 
fairly acquired wherewith to discharge his debts. It 
were strange indeed that his dissipation should be paid 
for by the alienation of a public property. This lawyer 
who, contrary to all reason, reproaches the President 
with having acted more despotically than an hereditary- 
monarch would have d.one, ought to have perceived, 
that, in speaking of his. creditors, he incurred the ridicule 
of imagining himself a greater lord than the prince of 
Wales ; f ;r an ac*^; ij{ Parliament is necessary to author- 
ise the discharging of ihe prince's debts with the public 
money, whereas Mr. Livingst<in thinks he has reason to 
consider it as unjust, thcU he is not j;ermitted to dispose 
of 'public property for the jnirpose of pa\ ing his honest 
C>:reditors. It m'jst be acknowledged that this motive of 
consideration is entiieb, novel, and ihat Mr. Livingston 
must have great reliance on ihe goodness of the Amer- 
ican -people, to presume to urge it. As to the widow 
and the two children in whose favor Mr. Livingston 
appears so generously to solicit the benevolence of the 
public, they have never possessed either in kind or in 
equivalent, the means of support which he has the good- 
liess to assign them, and which he represents as illegally 
seized by violence. The late Mr. Delabigarre, the 
head of that family, was concerned with Mr. Livingston 
in the Batture speculation. He might have gained 
^nuch, but as he exposed nothing, he was in no danger 



( 43 ) 

of losing : for it may with truth be asserted that therft 
subsisted between Mr. Oflabigarre, Livingston and 
Gravier, an agreement, in which it was stipulated that 
the purchase m )aey should be paid only after the ob- 
taining .'f quiet possession of that public property. We 
may even add, without danger of contradiction, that to 
this day, Gravier, who sold the Batture, has not receiv- 
ed a cent either from Mr. Delabigarreor from his exec- 
utors, and that the only payment he has received from 
Mr I^ivingston, has been in pleadings and law-suits, 
which have put him in the straight road to beggary. A» 
to the portion of batture which Mr. Livingston bought 
from Mr. Girod, the latter sold it to him without guar- 
anteeing the property, without giving him anv recourse 
whatever in case of eviction or dis possession, or of a 
judgment declaring that he never had any right to sell it ; 
nor was it Mr. Livingston who paid the amount of that 
purchase, aliho' the deed of sale contains a receipt in his 
name ; it was that wretched votary of litigation Gravier, 
who furnished the amount t) Mr. Girod, in a bond for 
11738 dollars due by Mr. Wiltz, on the amount of 
which Mr. Girod gave credit to Mr. Livir-g ton for 
^10000. As to Mr. Livingston's numerous family, 
the attachment he bears them is the only favorable light 
in which he can be considered ; but that family is to de- 
pend on his honest industry, and not on the possession 
of an immense national property. 

The following passage is taken from the second page 
of Mr. Livingston's address. '" The people of the U- 
nited States will hear with incredulity and astonish- 
ment, that in a country governed by the wise constitu- 
tion they had framed, neither its provisions nor the so- 
lemn stipulations of treaty, coLdd protect an individual 
in the enjoyment of his property ; that the decrees of 
the judiciary have been reversed bv the executive, with- 
out hearing, without notice to the party, without any of 
the forms prescribed by law, and that, by a refinement 



( 44 ) 

•f oppression, the claims (.f the public were suffered f 
lie dormant, aniil the party confiding in his title, had 
expended hih whole personal estate in improving land of 
which he was thus forcibly deprived." 

jMr Livi?>gston has here misrej^resented the motives 
of the V iblic astonishment and indignation on seeing a 
coin of justice, in contempt of evtry principle of equi- 
ty, of ever) iiiiperative provision of law, regardless of 
the solemn stipulations of treaty, adjudge to an indivi- 
dual a pint of he bed of a river : on seeing that court 
of jus. ice maik -heir first decisions in this monstrous 
suit with tht- most airocious partiality, and then refuse 
to hear the testimony of one of the nitst respectable 
men in ihi^> city, for the purity of his morals and his 
Strict probity. 

But Mr. Livingston asserts that the judicial au- 
thority was set at nought. This assertion from Mr. 
Living'. ton is at least erroneous, if not hypocriti- 
cal. The judgment of the court w^as radically null and 
void: the) had exceeded the bounds of their jurisdic- 
tion ; and no decision of the court could impair the 
claims of the United States. '' The claims of the pub- 
lic, says Mr. Livingston, were, by a refinement in op- 
pression, suffered to lie dormant." This last assertion 
cannot even claim the favor of being looked upon as an 
error; it is a downright falsehood. It is a matter of 
public notoriety that both in court, and amongst the ci- 
tizens of New Orl. ans, the claim of the United States 
to the batture was fiequently brought forward; and eve- 
ry one agreed in sa) ing that il the batture did not be- 
long to the city, it unquestionably belonged to the Uni- 
ted States. Moreover, many persons flattered them- 
selves that such was the opinion of Mr. James Brown, 
the district attorney of the United States ; and it was 
thought that, should Mr. Livingston succeed in dispos- 
sessing the city, Mr. Brown would instantly claim that 
public pro|.'erty as belonging to the United States. But 
In this expectation all were disappointed j and it is t« 



(45 ) 



ibe regretted that the right allowed to a district attoritey, 
of beiitg of cour.sel for an individual, would not sufi"er 
Mr. Brown, who in that suit, was concerned for Mr. 
Livingston, to aj-^pear, wifh any proi^riety', to be per- 
suaded of the justice of ihe claim (f tht U itcc Siutes. 
A motion was however made for a utw inal cf die 
cause, by virtue of the right which the Ui;iied Siates 
had to that public property. That right became thence- 
forth the subject of conversation, and was piblici^ dis- 
cussed in the news papers. Several numbers of the 
Teiegraghe. and the first number of the Courrier, dated 
the 14th I'f October 1807, publicly attest this faCt, and 
fully evivice the falsehood of Mr Livingston's assertion. 
The citizens had assembled on die baiiure for the [)ur- 
pose of defending the rights of die United States by op- 
posing the illegal seizure of a pvhhc p?opert\ ; and at 
last the Governor, at the request of the people, thought 
proper to transmit to the g aeral government the claim, 
laid by the cl izens to ihat public property,, in the name 
of the sovereign. Alt these Circumstances, the notori- 
ety of which ca. not be denied, existed !>revious to Mr. 
Livingston's having expended a shlihng Oii the batture. 
And )et it is iu he iitce of all the -e facts, which im- 
print on his add-eos tiie seal of hypocrisv and x:>[ false- 
hood, that Mr. Livingston has the ellVuntery tu assert 
that, by a refinement in oppression, the claims of the 
public were siiiFered to lie dormant, until, ce-nfiding in 
his title, he had expended his whole personal eslaie in 
improving the iaud. Let him radicr sa;/ thai hi. v. as in 
haste to exercise an act of owi ership, and to ap. tar to 
have experded considerable bums on that part of the 
bed of the river, in order, if possible, to dimini;sh the 
invalidity of hi., tide. B.t as Mr. Livii^gston .speaks 
of the confidence he had in that tide, let us be permuted 
to ask him what kind of confidence had G^av ier in those 
pretended claims, notv/ithstaiicii; - which he did not 
hesitate to sell to JVlr. Deiabigarre and Mr. Livingston 



(4bj 

for 10^000 dollars, which he never received, a pretend- 
ed property which Mr. Livingston values at no less than 
half a million of dollars ? Let us further be permitted 
to ask Mr. Livingston, why, with all the confidence he 
appeared to have in the legality of his title, he did not 
submit it to the board of land commissioners established 
by CoDgress, as that was the only tribunal competent to 
decide as to its validity r But these means could not suit 
the purpose of Mr. Livingston who, as may be believed, 
had no m^ore confidence in the justice, that in the vali- 
dity of his title. Having obtained a judgment from the 
superior court, he waited till low water to begin to dig 
a canal and throw up a dike beyond the bank, and he 
plied the work with incessant assiduity, in hopes, as we 
have said, that the sums he should expend, might berve 
to prop his title, or afford him a pretext to aipeai to the 
liberality and generosity of Congress, and thereby ob- 
tain an indemnification more considerable that his real 
expenses and the losses he should have sustair-ed. 

The following quotation from the 2d page of Mr. 
Livingston's address, announces much less his fears, 
than it evinces his enmity to the president : " I shall 
alarm that blind spirit of attachment, which adopting 
the maxim of English prerogative, will not for a mo- 
ment admit that a popular leader can be guilty^of wrong 
— and accords impunity to a President of the United 
States for acts that would shake the throne of an here* 
ditary monarch." 

Never was such a spi'-it compatible with the spirit of 
republican government. I do not believe that any de- 
mocratical government could exist five years, where such 
a principle were established by the laws, or by the pre- 
valence of custom. False patriots, until their masks are 
worn out, may indeed have usurped popular favor ; but 
no sooner did they become apostates to the principles 
which had raised them to popularity, than they irrevo- 
cably forfeited all public confidence, Mr. Livingston 



(47 ) 

may recollect that there was a time when lie enjoyed 
some degree of popularity ; his talents, his friends, his 
political connexions, gave him, in those days, some 
clai nr to the esteem of his fellow citizens. The republi- 
cans mav even have considered him as one of their lead- 
ers, and he m";ght siill rank highly in that party in which 
his family enjoys well merited considt|"ation, had he 
not misapplied his talent and his influence. But it 
sometimes happens that the only effect of education 
is, to bring to full-blown maturity vices which the 
frost of ignorance and obscurity would have nipped in 
the bud. Of this the different circumstances of the life 
of Mr. Livingston afford incontestible proof. " Those 
indiscretions which compelled him to 'become an exile 
from his native state have cut him off from all hope of 
regaining public confidence, notwithstanding all his de- 
clamations against what he is pleased to call an arbitrary 
act. But what in reality is that act which would have 
shaken an hereditary throne, and to which a blind at- 
tachment to the president has accorded impunity ? Is it 
possible, Mr. Livingston, that your insatiable avidity has 
so far impaired your judgment as to make you sincerely 
consider in so odious a light, the act by which the pre- 
sident did not permit you to take possession of the Bat- 
ture ? What, sir, do you think you have such claims 
to the gratitude of your fellow citizens, that the nation 
ought to reproach the president w'iih his having wrested 
from the gra-p of your criminal speculations, a public 
property so useful, so indispensi.bly necessary to all the 
inhabitants of this territory and of the western states ? 
In order to escape your perfidious, your incendiary allu- 
sions, must the president in contempt of all laws, divine 
and human, by the most basf^ and reprehensible conde- 
scension, have suffered yom to snatch from the people 
rights, secured to them alikle by nature and by the trea- 
ties which you have the hylpocrisy to invoke f Was it 



(48 ) 



to be expected that a republican jrovernment would ac- 
ki>^ "Udge die righfs of an individual P-' sell to the peo- 
ple hi- sandy ^Aimr. which ihe river de[.n its, when, un- 
der a morrarcliical government, ihe i eople's righf to ap- 
propriate it to their ose, was never contestt^d i Was a 
citv to be deprived ' f i:s n:..b ar, ar.d wa the stra .d of 
its river, where annuall"/ co-me to a nafe mooting, boats 
ioad'.d withcoran[i!)diiies the tnost necesaar) for its c^rai- 
merce and its home coasumption, t > be trai}sf(^rmed 
into receptacles of pestilential fiiih, which it wouid re- 
quire several yeart, to compiete t In a word, wa , it to 
be expected, that, to satiate your avarice, and that of a 
few rapacious speculators, the chief magistrate of a re- 
publican government should prove more insensible to 
the claims, to the vvants, and to the rights of the people, 
than the most shameless despot would be to the cravings 
of his prodigal mistresises and favorites i No, sir, it is 
time that you and all those who resemble \ ou, should 
be convinced of this truth — that France did not cede 
this country to the United Staies, nor did the American 
government acquire it, m order that a gang of blood- 
suckers, of ravenous lavv^yers, of foreign capitalists, 
should, in contempt of all notions of justice and human- 
ity^ combine under die most criminal compact, for the 
purpose of chaining its inhabitants under the double 
yoke of wretchedness and chicane. The American go- 
vernment possesses principles too liberal to suffer the 
worthy inhabitants of this country to be immolated to 
the futility of your arguments, and to the machiavelism 
of your understrapers. 'I he president would indeed 
have rendered himself guilty of an act that would have 
shaken the throne of the most absolute despot, had he 
rejected the representations of a people jusdy indignant 
at the audacious attack you had made on rights which a 
court of justice could not even call in que^ti-Jii. 

In vain do you attempt to associate the'cause of land- 
holders with your own, ani to make them apprehend 



that the same authority which has done no more than 
op|.ose your usurpations of public property, may hereaf- 
ter disturb them in the possession of their estates. Y )\i 
will find no person so blind as not to see, in the firm- 
ness with which the president has maintained the rights 
of the public, the most sure pledge of the government's 
inviolable respect for private property. Every man, on 
the other hand, would have been persuaded that the 
right of j;roperty was no longer sacred, that those words 
had lost all meaning and effect, had your intrigues and 
machinations so far prevailed, as irrevocably to ci)nsum- 
mate the spoliation of a public property, their claim to 
which was so justly and so strongly asserted by all the 
inhabitants of this territory. What could have availed 
against your artifices, the right of a solitary individual 
despoiled of his property by some of your subtle quirks, 
if the united claims of several thousands of respectable 
citizens, could not have snatched from your avidity a 
public property, the common enjoyment of which was, 
Iwill not say necessary, but indispensible to a whole 
people I What man could have considered himself se- 
cure in the possession of his property, however authen- 
tic his titles, had you been able, in contempt of the most 
solemn treaties, of rights the most firmly founded in 
nature and in law, to brave the misery and indignation 
of the people, and wrest from them a property, their 
right to which, no one before you had been able to con- 
test ? What thanksgivings ought not we to render to Mr. 
Jefferson, were it only for his having given us the hope 
of seeing a dike opposed to that inundation of knavery 
and chicane, which threatened to swallow up all our 
private property, if once it could have carried away that 
which belonged to the public ! No, sir, do not expect, 
by your insidious assimilations, to diminish the respect 
and sincere attachment which we so justly bear to Mr. 
Jefferson : the gratitude of the inhabitants of ihia coun- 
try towards the American government, is equal to the 

G 



indignation and contempt with which you have mspired 
them. 

Mr. Livingstv^n declares, in the third page of his pam- 
phlet, that *' secladed in a remote part of the country, 
occupied with the business of a hiborious profession, the 
rap. d chaviges of general pohtics, its ancient divisions 
and ncr/ c )!nbinations. have for five years passed un- 
heeded or u. known/' 

It were to be wished, especially for this country, that 
Mr. Livi.g ton had here spoken the truth in all points. 
When the im^jr udencies of Mr. Livingston Had driven 
him into exile, it might have been expected that he would 
have ch )sen for hi . retreat soaie sequestered spot, where 
he might have spent the remainder of his days exempt 
from the reproaches of his fellow citizens ; it was at 
least tG be hoped thai hid future conduct would be such 
as carefully to avoid whatever might draw on him pub- 
lic observation ; bat this mode of life, which prudence 
prescribed to him, was nol consistent with his views. 
Intrigue was to succeed to profligacy ; and as it was not 
expedient that the iheaire of hi . imprudencies should be- 
come the scene of his wily schemes, it was necessary for 
him lO make choice of a retreat in a country too little 
acquainted with what had lately taken place, to have any 
prepi.sseosioiis unfavorable to him, and yet sufficiently im- 
portant toaff rd him every opportunity of exercising an 
influence that might enable him speedily to repair his for- 
tune, without meeiii.g with any obstacle as to the choice 
of means. Louisiana, by the change of dominion it had 
just undergone, presented to Mr. Livingston every ad- 
vantage he could desire, and New-Orleans became the 
place of hii residence. His arrival w^as pompously an- 
nounced in one of the papers of this city, and he had the 
modesty to cause to be there inserted the flattering 
thanks, which p'-^ceecled the resignation he was obliged 
to give in, of the office of mayor, and which were pre- 



(51 ) 



rented to him in the name of the cUy council of New- 
Vork, byhis iUustrious friend Mr. John B. Prevost. 

The Louisianians found in Mr. Livingston a man not 
destitute of talents, and they flattered themselves that 
they should find in him a good citizen ; but they were 
deceived in their expectation. Mr. Livingston, whate- 
ver he may please to tell us, did not confine himself to 
the occ'-jaiionsol his profession ; he plunged headlong 
into speculations, which it was impossible to realize oth- 
erwise than bv intrigue. Tho' b.irthened wi.h debts, 
he did not hesitate to co itiact new obligations, with al- 
most a eertaint}^ of not being able to discharge them. 
His acquisitioti of the BnUiire \va^ not the only hazard- 
ous speculation to which he di.ec edhis attention- He 
knew that the grant made by the Spanish go\ernment to 
the Baron de Bastrop, was vitceriy void, i;ia. much as the 
grantee had not com >iied with any of he coiidiiions re- 
quired of hiin ; he was n'>t ig .orant of the claim the 
United States hud o that grant ; yet he doi.bted no ^ for 
amome-ubut that intrigue lii'ght defeat all proof of the 
nullity of the Baron's title. Let it not be imagined 
however, that vir. Livingston had so little dexteritv as 
to hazard in the v/hole course of this affair, an\ thing 
more than the vast cornbinatio^js of his i; trigue. He 
had indeed given his i)r>nds fo? the .payment of that )ar- 
chase, but he had sureh- calculated on never d'scharging 
them : and herein thj event evinced h^s :>agacity. The 
term allowed fo. the payment being expired, he regaled 
his new creditors with a law su\t of prime quality, that 
is to say with one of '^he '' occupations f /us laborious, 
profession,^' and he had the talent to prove, by I know- 
not v/hat argument, that for having preserved that grant 
unimpaired during two years, and for having failed to 
discharge the obligations he had contracted tov^ards 
them, he had a right to restore to them only about one 
fifth of that pro})erty, and to reserve t^ hunself the re^ 
maining four fifths. The Congress cannot too soon di- 



(52) 

rect their attention to this Ouachita business, which is 
realU a dexterous trick of juggling concerted by a gang 
of lawyers. Messrs, IVIoo rehouse, Livingston, & 
Aaron Burr, formerly citizens of New-York, and 
Messrs. Lynch & Adair of Kentucky, are the principal 
persons concerned in this edifying speculation. The 
surplus of that grant is divided among a number of citi- 
zens of New-O -leans, who never fail to vote at elec- 
tions. I request the reader to excuse this short digres- 
sion ; I will now resume the examination of the conduct 
of Ml. Livingston. 

On his arrival in this city, his pecuniary resources 
were null, and his credit was still more so. The estab- 
lishment of a bank became from that time his favorite 
project, and he exerted all his ingenuity to cause himself 
to be appointed one of the directors. But his plan hav- 
ing utterly failed, he became disgusted with the ordina" 
ry occupations of civil life, and wished to plunge into 
the vortex of public affairs. The form of govern- 
ment assigned to this country was not agreeable to 
the inhabitants ; Mr. Livingston, who had but just arri- 
ved in Louisiana, shewed himself, on this occasion, one 
of the most zealous defenders of their rights 2nd of their 
interests. His talents, his insinuating manners, acquir- 
ed him the confidence of many respectable citizens ; but 
as morality and jsisiice were not the basis of his conduct, 
their welfare co .Id not long be its object, and according- 
ly, he soon was unmasked. I agree with Mr. Living- 
ston, that he is a stranger to the new combination of po- 
litics in the United States, for no party would confide in 
him ; but it is not the less true that he is " an adept in 
the arcana of intrigue," and that he has signalized him- 
self as one of the most active members of the disorgan- 
izing faction that has so long desolated this territory. 

Ever faithful to his system f detraction, Mr Liv- 
ings:, on does not fear to call down upon his head suspi- 
cion of his being one of the accomplices of Burr, in ex- 
pressing himself thus : 



(53) 



^^ Where the destruction of personal libertj^ is permit- 
ted with rnpunity, th« invasion of private property must 
be a venial crime." We have had but one instance of 
the suspension of the habeas corpus, and thai was for 
the purpose of arresting the progret.s of Burr's conspira- 
cv. Doubtless those iactious hivvyers v ho had sv orn 
to make the Uniied Slates become, throui^h their in- 
trigues, the desperate auxiliary of Great Bnuiiii, mast 
have taken it iU that the energy of the government had 
hindered ihem from plundering our banks and revolu- 
tionising the country, in order to force our \vr'etch^:jd fel- 
low citizens to make an irruption into the Spanish [posses- 
sions ; it vvas very consistent that thev should raise a 
loud outcry, on the arrest of a few of their agents, of 
whose individual liberty it was necessary to make a tem- 
porary sacrifice to public liberty endangered by their 
seditious machinations ; nor is it any way surprisilng to- 
see the innocent Livingston, " a stranger to all pardes," 
address himself, in this allusion, replete with cand(M', to 
the scattered wrecks of the army of his general, v/ith a 
view to call them impartially to the assistance :,'f his 
cause. It is very natural that he should speak of the 
destruction of individual liberty, when there no longer 
existed any alternative between the temporary destruc- 
tion of the liberty of a fevv' fire brands, and the extermi- 
nation of public liberty ; nor is it widi less consistency 
that he cries out against the violation of private proper- 
ty, when the sole object in view is, to hinder him from 
usurping the property of the public. 

Mr. Livingston assures us, that " in detailing his 
facts he shall rely on none but such as are proved by 
the strongest evidence — that his deductions from th.-in 
shall be drawn with the candor necessary to the investi- 
gation of truth." This is doubtless a very fine pronuse> 
let us see how he will perform it. 

'" At the time of the ratification of the treaty by which 
Louisiana v,-as ceded to the United States, by one of the 



(54 ■) 

articles of which the inhabitants are secured in the un- 
disturbed enjo) ment of ihtir proper as alb * a ihe time 
of its execution, *' Johi Gravier, " sa} s Ivlr. Liv;ng;ton 
*' was proprietor and pos-ie^sor of a farm, or } la.itation, 
adjoining to the city )i New-Orleans. Ab;> >i fifteen 
years prior to the ce .sion, he had laid out a part ol his 
farm into lots, and it now forms a quarter of .he citv, 
known by the name of the s'jburb Si. Mar;> . I;^ 1, ont 
of this farm, an increase of land has been gradually 
forming for the last thirty or forty years." 

This statement is the masterpiece, I will not say of 
falsehood, but of the most skilfully combined disingen- 
uousness ; for it is couched in such a manner, that one 
may pdssitively infer from it that John Gravier, is .till 
proprietor of a plantation adjoining the river, the back 
part of which has been converted into a s^iburb, yet with- 
out its being possible, in proof of the contrary, to con- 
vict Mr. Livingston of falsehood. Such is indeed, the 
address wiih which he speaks in this instance, that in 
appearing to refer it to the present time relative to its 
contiguity to the plantation, he mav, by an exj^lanation 
annexing that ciicumstance to a passed time, avoid the 
mortification of being formally charged with imtrulh. 
By restoring facts to their physical and chronological 
order, v/e shall set in the strongest light the candour of 
Mr. Livingston. 

Long before the sovereignly of Louisiana was ceded 
to the United States, Gravier had ceased to possess a 
riparious plaitation. Fifteen years ago the portion of 
that estate which borders on .he river, was alienated for 
the purpose of building on it the suburb St. Marv, and 
the portion that remained in the possession of G a\ ier, 
is not, as might at first be thought from Mr. Living- 
ston's statement, situate in front of this increa'^e, but be- 
hind this suburb, which is adjacent to the river, whose 
periodical rise covers, during 5 or 6 months of the year, 
this pretended increasCj which is nothing but a part of 



{55) 

its bed. After that ostentatious display of candor, ia 
not the reader shocked at the duplicity which character- 
izes such an onset in ihe exposition of facts ? 

I know not what kind of courage Mr. Livingston 
may possess, but indeed I acknowledge he has that ot 
impuJeiice in the highest degree. , 

As to that pretended increase, 1 own that Mr. Liv- 
ingston might expect one more real and more coi>sider- 
able, were Congress to permit him to execute his projects 
of encroachment on the bed of the river ; for the mere 
effect of the dike he had begun, has so far changed the 
course of the river as to force it to augment the batture 
by 70 or SO feet, and to raise the soil by upwards of a 
foot in certain places. But were Congress to grant him 
that favor, (for a right supposes a title, and Mr. Liv- 
ingston has none whatever to the batture,) the harbor of 
the city would soon be choked up, and the river rush- 
ing with violence thjough that confmed part of its bed, 
would be carried with velocity on the suburb Marigny, 
and on the lower banks, where it would probably indem- 
nify itself for the constraint under which Mr. Living- 
ston had i -id its course. But would it be just, would 
it be reasonable that Mr. Livingston, who has no man- 
ner of right to the batture, and who in that pretended 
purchase disbursed nothi g more than the equivalent of 
the very dear words wn.cl|^he had the talent to sell to 
his unfortunate client, bh.)uld make encroachments ou 
the river, to the ruin of the harbour and of the estates 
of the inhabitants on both the lov/er banks ? Shall this 
city, to wiiich earth is a cjusiant object of primary ne- 
cessity, whose soil, inclining tov/ards the lake as it re- 
cedes from the levee, is continual!} washed away by 
very heavy rains, and which, but for the sandy slime an- 
nually deposiied by the Mississippi on that batture, 
would become an immense quagmire, shall this unfor- 
tunate city be cruelly sacrificed to the attrocious specu- 
lations of a v/retcb.ed lavrvcr Viho has svrorn to be its 



(56) 



scourge ? Shall we see him establish the feudal systetn 
in she midst of astonished America, by assuming to 
himself the right of laying a wharfage duty, which be- 
longs only to the sovereign, or to the corporations that 
are his delegates ? Shall he dare to lay prostrate all trea- 
tie.. and ail principles of law, in order to impose for the 
suppl)' of the exchequer oi chicane, a land tax on all 
the real property in the city, by leaving to the owners 
no other alternative than to see their coiirt-yards eiiher 
turncjd into pesdientiai fens, or burthened with a rent 
to be paid to him, f f r liberty to take the earth neces- 
si\ V to raise them ? Yet such would be the odious and 
sho( king consequences of the spoliation of that public 
propeay. 

*' About ten years prior to the cession, continues Mr. 
Livingston, the future value of this property began to 
be foreseen, and some of the most intelligent inhabi- 
tants of the suburb, ia order to secure to diemselves the 
benefit of the increase, made purchases of parts of the 
alluvion from Gravier, the deeds for which were made 
before the noiary of the government, whose duty it was 
to pabs no sales where the vender did not shew a title." 

This statement is no less artful and fallacious than 
that .hich precedes it. One would imagine that the 
sales alluded to v,'ere special sales of some portions of 
batture to- which the vendet Gravier, had shewn a par- 
ticular title, whereas the fact is that he had shewed none^ 
and that the deeds in question contain the alienation of 
those portions of batture merely as accessory to the lots 
sold. Admitting that, unmindful of the change which 
the nature of Gravicr's estate had undergone .--y i;s ow- 
ner's having converted into a suburb the part adjacent 
to the river, the notary continued to consider tho^e por- 
tions of batture as the accessory of the principal which 
was alienated this vvould at most prove the ignorance 
or inadvertence of that public officer^ but would by no 
means imply the exhibition of a previous title, as Mr. 



{57 ) 

Livingston would fain persuade us. But what evinces 
that neither the parties nor the notary were as ignorant 
as we might at first be inclined to think them ; what 
precludes all doubt as to their full convic ion of the ut- 
ter illegality of those sales, with regard to the aliena- 
tion of those portions of batture, is that Mr. Girod 
himself, one of the purchasers of those very portions of 
batture, and in right of whom, as we have sewi, Mr. 
Livingst'Ui claims, ha-^, in presence of the very notary 
before whom these sales had j assed, and who in this 
circumstance officiated in his double capacity of secre- 
tary to the Cabildo, formally ackafjvv lodged the abso- 
lute nullity of his pretended' title, b. ih^^ ^.etition which 
he presented to the Cabildo on the 28th of Ma> 1801» 
In that petition Mr. Girod prayed to be pei milled to 
build a flour mill on the space between the river and 
the road in front of his hoise situate in the suburb, 
that is, Oil that very portion of batture which he had 
caused to be sold to him by Mr. Gravier, and for this 
permission he was willing to pay a rent as a tribute of 
the soil which the contemplated establishment would oc- 
cupy. Notwithstanding all the appearances of public 
utility set forth by the petitioner, his request was refu- 
sed by the Cabildo. It must be acknowledged that this 
pretension to the soil in question is of a very singular 
species of property, and I doubt much whether Mr. 
Livingston, profound as is h:s knowledge of jurispru- 
dence, could, in the enumeration of the several species, 
find one under which to class it. A proprietor who not 
only requests in writing to be permitted by the public 
authority to make a specific use of the land sold to him, 
but who cannot obtain his request even though he sub- 
jects himself to pay a tribute for the soil, and that in 
presence of the notary who passed the sale of his pre- 
tended property, and who is silent as to the execution of 
that deed of sale ! What concurrence of circumstances 
ever established more evident nullity and fraud than 

H 



mh9i presided over the forgery of those sales ? Must 
not Mr. Livingston have renounced all shame and di- 
vested him' elf of all rationality, before he could pre- 
sume to adduce those deeds, acknowledged to be void 
both by the purchaser himself, and by the notary ia 
qrality of secretary of the cabildo, as though they were 
authentic contracts of sale ratified after the exhibition 
of a previous title. It is really hard to determine which 
is the more astonishing, the depth of crafty combina- 
tions discoverable in the arrangement of all the facts 
stated b} Mr. Livingston, or the unabashed effrontery 
with which he urges them. For my part, I own that 
the deeper I dive into the examination of his philippic^ 
the more I find myself incapable of solving this pro- 
blem. 

Mr. Livingston possitively asserts that the claims of 
the city corporation produced the suit on the part of 
Gravier against the city. Thus does he constantly mis- 
represent the truth. That suit was not produced by the 
claims of the city, but by the pretensions raised in the 
name of Gravier. Mr. Livingston has just acknow- 
ledged that the public had ever been in the habit of tak- 
ing earth from the Batture, until Gravier laid claim to 
it. It is true he gives us to understand that it was 
done with Gravier's consent ; but where is the proof of 
this ? To have consented, he must have shown that 
he had a right to oppose. On the supposition that his 
clients generosity had permitted the public to commit 
some trifling depredations on his property, a prudent 
regard for his own interest required him occasionally 
to interrupt their continuance, by forbidding a practice 
which might endanger the prescription of his rights. But 
no such prohibition was ever attempted, either by him or 
by his ancestors. Why did he wait till achange of gov- 
ernment had taken place, before he opposed these pretend- 
ed usurpations ? It is then to the claims and pretensions 
he then formed for the first time, that is is to be imputed 



(59 ) 

the interruption of he existing state of things, and no^ 
to the pretensions of thj corporation, who did not raise 
any new claim, since, as Mr Livingston acknowledges, 
the people had till then, been in the habit of taking 
earth from the Batture. Nci.her i , it true chat the suit 
was really iastituied by Gravier. He merely lent his 
name in the course of those odious proceedings ; and as 
soon as Mr. Livingston imagined that the judgment 
of ihe Superior Court mast secure to him the quiet 
po'ssession of that pubLc property, of which he thought 
he had then consummated the spoliation, the lawyer 
threw off the mask, and finding in the possession of that 
immense property, sufficient to compensate him, should 
he be forced to share the maledictions with which the 
people had till then loaded his client alone, he abun- 
dantly convinced us that he, and not Gravier, was the 
real author of that abominable law suit. Till then he 
had had the precaution to present Gravier as his scape- 
goat, to be devoted to public execration as the person 
whose claim he was merely defending : for a lawyer of 
his description may, without committing himself, defend 
indiscriminately a good or a bad cause, that is, he may 
reason justly, or argue in opposition to reason and jus- 
tice, accordingly as self interest prompts the oracle of 
law. 

After having positively assured us, in the second 
page, that the claim of the United States had been suf- 
fered to lie dormant until he had expended his whole 
personal estate in improving the land of the Batture, 
Mr. Livingston acknowledges in page 8th, that the title 
of the United States to that property, had been the 
ground of a motion for a new trial in the Superior 
Court. 

This last avowal, extorted by the force of truth, may 
be compared to the striking of the watch that discovered 
the thief who had filched it in the cabinet of Charles the 
fifth. Mr. Livingston's usual foresight seemsj in this 



(60) 



instance, to have forsaken him ; for it is clear that, with . 
a little more mt^morv, it would have been easier for him 
to have stifled the voice of truth, than it was for the 
thief to have stoj>pv^d ihe balance of the watch. But the 
most active geniu has his moments of drowsiness. 

If we are to believe Mr. Livingston, he boughi the 
Batture from the heirs of Mr. Delabigare, and from Mr. 
Girod, for the sum of about ^80,000. 

Wh^ this approxlinaiJo!! ? In a purchase of such 
importance, und in general in every purchase of real es- 
tate, the purchaser can speak positively as to the sum 
it cost him. The term ahoiii is not known in contracts 
of sale. It is hardlv possible to account for this want 
of exactness, unless v/e recollect that this purchase being 
but conditional, Mr. Livingston does not choose to fix 
the preci .e price, that he may have an opportunity of 
paying to his venders a sum proportionably less, and of 
chatging those who are jointly interested, with a sum 
propurtionably higher, for that pretended purchase, as 
his expenses and the steps taken by him may have been 
more considerable and more multiplied, before he suc- 
ceeds in finally consummating the spoliation of that pub- 
lic property. Assuredly Mr. Livingston did not thus 
express himself without some design and some useful 
dbject. 

Mr. Living-ton asserts,^ th^t the people did not at- 
tach anv great importance to the ca'-ise during its discus- 
sion. Two circumstances account for this pretended in- 
difference ; the first is that the language in whicli the 
cause was pleaded, is unknown to a great majority of 
the inhabitants of this countr) ; the second is, that the 
people, confiding in the strength ancA the evidence of 
their claim, and relying on the respect which they 
though would be had for public property, never consid- 
ered that suit in anv other light, than as being one of the 

*Page 9. 



(61 ) 



means devised hvMr. Livingston, to accelerate the ruin 
of Gravier, b gratif} ing his pjopensity to litigation. 

" No sooii- r was ihe cau'^e decided," continues Mr. 
Living ton, " ihan everv engine that could excite popu- 
lar resentment, was set in m tion." 

No engine whatever was set in motion .• it was natu- 
ral that the discontents of the people sh^^uld be manifest- 
ed bv an explosion the more energetic and spontaneous, 
as they had till then been the more firmly and constant- 
ly convinced of the justice of their claim. 

A mob, (I quote Mr. Livingston) opposed one of the 
proprietors in his aitempts to make some improvements 
on the land. 

It is highly irritating to see a man of jMr. Living- 
ston's description u^e such an expression, in speaking 
of the people who assembled on the Batture, to op- 
pose him in his attempt to destroy a })art of -he har- 
bour of the city. The conduct of those people, whom 
he has the baseness to provoke and insult, because they 
are friends to order and incapable of running into 
the least excess, was as calm and as moderate as that of 
M . Livingston's was odious and insolent. Persuaded 
that the government a^one was competent to afford them 
effectual protection against the audacity and unbridled 
avidity of Livingston and his understrappers — they en- 
tirely acquiesced in the assurances which the govern- 
ment was plea.ed to give them, that the general govern- 
ment would make the affair an ohjecf of their speedy in- 
terposition ; and as no excess hud precceded that meet- 
ing neither was it foilov/ed by an\ disagreeable conse- 
quences. All the best disposed, the wealthiest and the 
oldest inhabitants of theciiy, v/ere present at that meet- 
ing, to protest against the spoliation of a public pro- 
perty, attempted by Mr. Livingston under forms the 
more odious, as he had made the majesty of the laws 
serve as a sanction to his robbery. 

Mr, Livingston, in order to render himself interest- 



(62) 



iiig, is pleased to inform us, page 11, that he knew that 
the malice of his oiemies was active ; he knew that the 
po teal existence of he most malevolent among ihem 
de oded on his impressing the President v/ith a per- 
suasio.^ ofhi-i popula'-ity 

Mr. Livingscnn is here looked upon as an enemv by 
all the mo-~t wO' thv people in «he country, a;id it woidd 
surely be dinicult to believe that .here existed the slight- 
est shade of difference in the opinion hey entertain of 
that lawyer,, I brlieve they all equally detest and de- 
spise him ; we cannot however mistake as to the per- 
son he intended lo designate, for it is evident that this 
little compUment is addressed to Mr. Claiborne. 

But what is most remarkable is that he imputes to that 
governor the rancorous sentiments v.hichhe himself has 
professed towards the latter, sentiments s© publicly 
knovvTi that his malevolence towards him is become pro- 
verbial. The hatred that Mr. Livingston bears to Mr. 
Claiborne, dates its origin from the time that the latter 
made him suffer a refusal on the application of this up- 
right fmancier of New-York, to b-; appointed a director 
of the Louisiana bank. From that moment iMr. Liv- 
jfigston changed his battery, and apostatized from the 
principles which it is ihe pride of his family to profess, 
determined to v/allov/ in the intrigues of Claik & Co. 
That the Governor holds in abhorrence the views and 
the conduct of Mr. Livingston, I readily admit ; but 
that he bi;ars him the least enmity, or has given himself 
any concern v/ith regard, except in undertaking to dclend 
the rights and interests of ihe public, shattered by ihe 
artcilery of his intrigue, this is what I am far from be- 
lieving. As to the popularity which IVIr. Claiborne en- 
joys, he does not owe it to the affair of the Batture ; his 
justice, his rectitude, his vigilance, the sincere attach- 
ment he bears to the inhabitants «.f the eountry, his firm 
and prudent conduct vvhen surroimded, as it v/ere, by all 
the most active elements of the faction of Burr — such are 



(b3) 

the honorable titles on which are fonnded hU claims to 
the affection of all hcmest men, and to the coiifideiice of 
his government. Sich popularity could receive no in- 
crease from the affair of the baiture, in which .he gov- 
ernor did no more than strictly adhere to his dut\ , with 
reference to the general interest of the United Stales ; 
and as that affair was not merely a local concern of this 
territory, but had a considerable influence on the trade 
of all the western country, had Mr. Claiborne shewn any 
indifference on this occa ion, not only would he have 
been highly reprehensible, as unmindful of whai he ow- 
ed to the interests of those under his government, but 
he would have merited general reprobation for having 
suffered the trade of one of ihe richest quarters of the 
union, to be shackled by the spoliation of that property. 
Mr. Livingston positively declares, page 12, that the 
first, second, and third regim-ents of militia were ordered 
to parade in the subuib, in order to assist the marshal in 
the execution of the President's mandate This is an 
additional proof of Mi. Livingston's want of respect fur 
truth in the arrangement of his specious narrative. 7 he 
fact is, that not a single company of militia was ordered 
out. The citizens went in crowds to the Batture, and 
the marshal had recourse merely to the pos6-e coniit rius. 
The great concourse of people, when that officer in the 
name of the government, dispossessed Mr. Livingston 
of the Batture, is another pro< f bo.h of the interest they 
took in that affair, and of the pleasure wi.,h Which all ho- 
nest men beheld the triumph of ju^^iice over iviquity. 

I now beg leave to ask Mr. Livingston, who endea- 
vors to persuade his readers that the i#ea3ure taken by 
the president was un|;opuIar, whether all the anterior 
meetings that had taken place on the Batture, v/ere not 
spontaneous ? Has he not himself found in those very 
natural proofs cf the public discontent, a pretext for re- 
proaches apparently well founded ? Let him rec llect 
the publications signed ViwVtor and E. Livingston, winch 



(64) 



appeared abGiit tliat time in the public prints of this 

tity ; let him call to mind the bitter complaints he ad- 
dressed to the persons inverited vvith the executive au- 
thority, relative to those meetings. If until that time it 
would have required an armed force to prevent them, 
how can we adinit that in this circumstance, the execu- 
tive authority v»'as obliged to have recourse to an armed 
force for a contrary purpose, that is, to prevent the peo- 
ple's opposing the dispossessing of Mr. Li\ingston, when 
ihey themselves would have dispossessed him four 
months earlier, by open force, had not the Governor, in 
reniinduig tht^in of the respect due to the laws and to the 
dec.bion o^ a Siiperior court, given them positive assur- 
aiice cf the interposition of government. But Mr. 
Living'.ton has already accumulated so many fal ehoods 
in ihat fallacious exposiiion of facte, ih:it one falsehood 
m )re or less would be on the vvh{)Ic but f.f slight inipor- 
laiice, as it could no way affect the regular tenor of his 
system of deception. 

Mr. Livingston savs, that by being dispossessed of 
the Battute he was reduced to poverty : 

We Hiust be permitted to aiviv/er that thiv. first objec- 
tions, were it U ur.ded in truth, couid have no weight 
in a circun.stance in which it wa the duty of the Pre„ 
sidcnt to preserve a public property ; hot it is fur- 
ther to be observed that Mr. Livingston has not been re- 
duced to poverty, that the Presiderii's orders had only 
hindered him from trkiug what did not belong to him, 
and thus giov/ing suddenly rich at i.ther..' expense. This 
ol)icctV2n IS about as well founded as though Mr, Living- 
ston w^ere to pretend thai he was ruined by litigants, not 
one of whom would retain him as their counsel. 

lur. Livingston, pages 13 and 14, lays before rhe rea- 
de;- the motives thac i'.duced him to g'> to Washington 
Citv. and the result of his interviews, and of his corres- 
pondence w^lth the President and the different officers 
of ,crovernment. The amount of all that rs interesting 



(65) 



in these details, only tends to shew in how low estima- 
tion the person of Mr. Livuigston is held in Washing- 
ton City, ?^nd that, notwithstanding his confidence in the 
pretended justice of his claim, which confidence he had 
had the precaution to prop with the opinion f -f different 
lawyers, who were favorable to hiin doub less in pro- 
portion to the money he had expended in seeing them, 
the President, the Secretary of Stale, the Attorney Gen- 
eral of the United States, still persisted in the opinion 
that he had usurped a public property, and that the af- 
fair must remain in the situation in which the Presi- 
dent had placed it. 

Mr. Livingston acknowledges, pages 19 and 20, that 
in consequence of the opinion of the counsel for the 
city, that the Batture was the property of the United 
States, he wrote to the Attorney General, and forward- 
ed to him an answer to Mr. Derbigny's opinion, filter 
this I once more ask what becomes of all that scaffold- 
ing of declamations in which Mr. Livingston as- 
seris that the claim of the United States had been 
suffered to lie dormant until he had expended his 
whole personal estate in improving the lands f These 
inconsistencies so frequently recurring, betray the want 
of sincerity which pervades the v/hole exposition of 
facts presented by Mr. Livingston. Thus he is under 
the continual necessity of contradicting himself. Mr. 
Livingston reproaches the President, page 21, with hav- 
ing called the batture a shoal or elevation of the bottom 
of the river, because, according to him, he ought to have 
described it by the term alluvion. But the President 
was thoroughly acquainted with the s'.bject matter; he 
was certain of the propriety of the expressions he em- 
ployed, and knew very well that that batture did not 
possess any of the qualities requisite to constitute allu- 
vion land ; he knew that that batture was in reality no- 
thing more than a part of the bed of the river, and that 



(66 ) 

it was impossible to give a more exact and faithful idea 
of it, that by describing it as he did, in his message to 
Congress. Mr. Livingston had doubdess very cogent 
reasons to whh that the President had not had, on that 
subject, notions sufficiently precise to establish the dis- 
tinction ; but it does not thence follow that he has any 
right to upraid him with his discernment. 

Mr. Livingston thinks himself further warranted in 
reproaching the President with having said that the city 
had immemoriaiiy used the batture, nor can he compre- 
hend hov/ this exijression can be used with reference to 
a city founded within a period of ninety-nine years. 

The v/ord immemoriLilly is very properly employed. 
Several of the witnesses and depopents employed it in 
attesting that the butti^re was in the use of the public. 
Ti?'^'^o.riF>consu!t3 v/ho have written on this subject, have 
also 'adopted that term ; and the President by this ex- 
]>res3ion, presented a correct idea, inasmuch as that use 
i:j preexistyiit to the most remote period in the recollec- 
tioit of the oldest inhabitants of the cit}^ 

Mr. L^viiigsion, in the same page, further objects to 
the President's assertion that the batture had only lately 
been claimed by a private individual, as from the docu^ 
ments he had transmitted to him, he must have seen that 
Gravier. twelve ^,^ears before, had sold a portion of the 

batture. 

But the President had also seen, from the documents 
tv?.nsnr.:ted to nimby the Governor, that that sale, made 
tv/elve years before by Gravier, v/as a sale the nullity 
of which was so apparent even in the eyes of Mr. 
Girod, the purchaser of that portion of batture, that 
yubsequti t .j that pyctended sale, to wit, on the 
28ih of IMay ISGl, he presented to the Cabildo a peti- 
tion requesiin:5 to be permitted to make use of it by 
building on i: a fiour-mill, offering to subject himself to 
pay rent for the toil of that same portion of batture. 



(67) 

The means of appreciating that pretended 'sale, wera 
furnished to the President by his perusal of that docu- 
ment, the original of which is deposited amongst the 
archives of the City Conncil. whence it is not apprehend- 
ed that Mr. Livingston will be able to remove it. 



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